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As an employer looking to hire foreign workers, you may be dealing with a pile of paperwork. In order to bring the foreign worker to Canada, there are various documents and application forms you will need to provide. Prior to completing the paperwork, however, you will need to decide which program and stream your worker qualifies under. There are two streams in which you could apply: either the Low-wage Positions stream or the High-wage Positions stream.
Deciding which stream your worker qualifies for requires analyzing the median hourly wages they will be paid, based on province or territory. A list of the median wages by province or territory is available on Employment and Social Development Canada (ESDC). Ensure that you are reviewing the most updated information, as the wages are consistently being updated to match the fluctuating medians. If your worker will be paid below the median hourly wage in your province, then he/she will apply through the Stream for Low-wage Positions. If he/she will be paid equal to or greater than the median hourly wage for your province, then he/she will apply through the Stream for High-wage Positions.
In this stream, the employer would be paying the foreign worker a wage that is less than the median hourly wage of that province. If you are an employer for a worker that qualifies for this stream, you may want to keep note that there is a cap on the proportion of foreign workers you hire in this stream. Currently, the cap is set at 20%. This is to ensure that employers who hire workers through the Temporary Foreign Worker Program have a proper chance to pursue Canadian employees. Note that the cap was set to be reduced to 10% as of July 1, 2016 but was frozen. Therefore, ensure that you are constantly reviewing the ESDC website to ensure your company does not exceed the cap limit.
There are various exemptions to this cap. If you, as an employer, are hiring temporary foreign workers in certain situations, they will not be part of your 20% cap. Such situations can include:
Employees working as private household or health care facility caregiving positions
Specific on-farm primary agricultural positions (including greenhouse workers or farm managers)
Certain employees that are applying for the Express Entry program
Employees in seasonal industries whose work periods do not exceed 180 calendar days
Other specific positions, described on the ESDC website
If your foreign employee does not meet the requirements of the exception, then you will need to complete an additional form (Schedule E – Cap for Low-wage Positions, available on the ESDC website) and include it with the Labour Market Impact Assessment application for that individual. Ensure you include sufficient supporting documents, such as payroll records, to complement the questions asked in the form. The Labour Market Impact Assessmentapplication also has a fee to be paid by the employer (ESDC has implemented policies that strictly state the employer may not recover the fee from the worker). The fee is $1000 (Canadian) for each worker. Note that a refund for the processing fee will not be provided in any circumstance (including if you receive a negative LMIA or if you retract the application).
In this stream, the employer would be paying the foreign worker a wage that is equal to or greater than the median hourly wage in that province. These workers should be working full-time positions, which require at least 30 hours of work per week. The employer must pay a $1000 (CAD) processing fee for each LMIA application filed (one LMIA application per worker). This is a non-refundable fee that, similar to the Low-wage Positions, cannot be refunded or remunerated from the foreign worker once they arrive in Canada.
The employer is also responsible for ensuring the Temporary Foreign Worker (TFW) meets the needs of the job. This means they must have adequate qualifications, education, training, and experience to be able to perform the position as determined by the NOC set for the job. Generally, TFW’s for the High-wage Position stream are expected to have a post-secondary education, whether it be a university degree or apprenticeship training. Furthermore, it is the responsibility of the employer to ensure that prior to starting employment, the foreign worker must have the appropriate certifications, licensing, registration, etc if they are working in a Regulated Occupation.
Though there are various aspects to an LMIA application, one important component is the Transition Plan. This applies only to employers seeking to hire Temporary Foreign Workers through the Stream for High-wage Positions. The Transition Plan is aimed to prove the employer has intentions to obtain Canadian citizens and permanent residents as workers, as well as assist their hired Temporary Foreign Workers to become permanent residents. The Transition plan should include elements describing the employer’s plan to recruit, retain, and train such workers. Though the Plan should be included with the LMIA application, it would only need to be officially put in effect once the employer received a positive LMIA back after processing.
Once the plan has been put into effect, you may be subject to an inspection. In this situation, it would be expected that you (as the employer) reports back on the results of the plan after it has been put into effect. You will also be expected to report on your progress with the plan if you re-apply for a new LMIA with the same occupation/position. As part of the inspection, you may be asked to include proof of completing the activities depicted in the plan. Such proof may include documentation such as: newspaper ads for jobs, employers support for the TFW’s permanent resident application, job ads depicting an increase in salary for the position, supporting letters from organizations that are partnered with yours, etc. Note that the Transition Plan is sent to Service Canada and is part of the LMIA application; therefore, if you intend to change the Plan after receiving your LMIA back, you will also need to inform Service Canada.
As with LMIA applications, there are also exemptions to needing a transition plan. As an employer, you may be exempt from needing to provide a transition plan if you are offering employment to a foreign worker in a position that has a time limit of either 1 and 120 days or more than 120 days but up to a maximum of 2 years (as would be the case for project-based positions). These exemptions are put in place as the position in question clearly has set time frames and also is not reasonable to be passed to a Canadian or permanent resident worker. If you qualify for an exemption, you will not need to provide a Transition Plan; however, you will need to complete the Rationale for Possible Exemption paper and indicate how/why you meet one of the criteria for exemption. Another possible exemption for the transition plan is if the worker is in a specific on-farm primary agriculture occupation. Specifically, this would entail the NOC codes of: 8251, 8252, 8253, 8254, 8256, 8431, 8432, or 8611).
The transition plan should include specific activities that are aimed to meet the needs of the Canadian workers. This includes at least three different activities that will promote recruiting, retaining, and/or training Canadian citizens or Canadian permanent residents in the position that is being applied for in the current LMIA application, as well as one separate activity that will focus on recruiting underrepresented groups (such as Aboriginal workers or youth). If the employer does not do so, they have a second option instead of the four activities mentioned above: describing one activity that will promote the Permanent Residency of the TFW. For example, this could involve providing the worker with a permanent job or assisting them obtain skills needed for their PR application.
Though the application forms are available public on the Government website, completing it individually can prove to be a difficult task. Rather, you may want to trust your application with an immigration professional. If you need any assistance with your application, feel free to call Akrami and Associates. Our dedicated team of professionals will be able to assist you with your application and any questions you may have.
With Akrami and Associates, there is always a way!
