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After Employment and Social Development Canada (ESDC) receives a Labour Market Impact Assessment (LMIA) from a Canadian employer, they begin their assessment of the application. This will eventually result in either a positive or negative LMIA. If positive, then the Temporary Foreign Worker’s (TFW) work permit application will be assessed. There is also the potential for an LMIA to be revoked later upon reassessment.
This article will be divided into the following 4 main sections: Assessment Process, Positive or Negative LMIA, Work Permit, and Revocation of an LMIA.
Every LMIA application goes through the same assessment process once it is received by Employment and Social Development Canada (ESDC). The steps of this process are detailed below:
Verify Employer’s Eligibility
First and foremost, ESDC will start by ensuring that the Canadian employer submitting the LMIA application is in fact eligible to apply. ESDC is in a constant process of investigating employers and keeps an updated list on their website of ineligible employers or employers who have had their LMIA revoked.
Verify Job Consistency
The job on offer must comply with relevant federal, provincial, and territorial agreements.
Assess Genuineness
At this stage, ESDC investigates whether the job offer on the LMIA application is genuine. There are a number of questions asked here, including:
Can the employer fulfill the terms and conditions of the job offer? (For example, the job offered should match the employment needs of the employer. The job should not have been created simply to match the criteria on the National Occupational Classification)
Assess Language Requirements
Next, ESDC will investigate which languages are required to do the job on offer. This will usually be English or French, but an employer can provide proof that another language is required for the job if necessary.
Assess Impact on the Canadian Labour Market
When a Temporary Foreign Worker is hired, the ESDC needs to consider the effect this will have on the overall labour market in Canada. For this stage, the following factors might be considered:
Benefit to the labour market (For example, might hiring the TFW help to create jobs for Canadians later or stimulate economic growth?)
Wages and working conditions offered
Effect on the settlement of a labour dispute (Is the TFW being hired to replace previous workers who refuse to work due to contract disputes or unpaid benefits?)
Assess Previous Job Offers from Employer
If the employer has made previous job offers to Temporary Foreign Workers, ESDC will verify that the new job offer is similar to the previous offers. The previous and new job offers will be compared using criteria such as wages and working conditions. The idea here is that the wages and working conditions should similar or better than the previous job offers.
Once Employment and Social Development Canada has assessed the LMIA application through the steps detailed above, then a final decision will be provided to the employer in writing. Naturally, if all of the program requirements are not met, the employer will be issued a negative LMIA and will be unable to hire the Temporary Foreign Worker(s).
If the employer receives a positive LMIA from ESDC, then the LMIA will be valid for 6 months from its issue date. This positive LMIA will contain details about the job offer including wages and working conditions. It will also have a system file number.
After the employer receives the positive LMIA, they should send a copy of the letter to the Temporary Foreign Workers that were included on the application. The employer should not send the Annex B section of the letter (containing the names of the TFWs) as this only for the employer’s records.
At this point, the Temporary Foreign Workers who receive the positive LMIA letter should take steps to apply for a work permit from Immigration Refugees and Citizenship Canada (IRCC). When applying for the work permit, the worker should include a copy of the positive LMIA letter with the application. The LMIA letter must be signed by both the employer and the worker.
Immigration Refugees and Citizenship Canada (IRCC) will assess the Temporary Foreign Worker’s work permit application. If the work permit is granted, the TFW will receive a work permit with specific details including:
Duration of work permit
Specific employer
Working conditions
After the Temporary Foreign Worker arrives in Canada, the employer must make sure that the worker is legal to work. The employer must ensure that the work permit issued has not yet expired and that they are listed as the authorized employer. Furthermore, the employer must maintain weekly or monthly records of the hours the TFW has worked (including overtime). What constitutes overtime hours may differ depending on the Canadian province where the worker is employed. For example, currently in Ontario, overtime is defined as any work over 44 hours per week.
If an employer wishes to retain a Temporary Foreign Worker for a longer period of time, then a new LMIA application must be submitted to ESDC at between 6 to 4 months before the worker’s work permit expires. It is important to start the LMIA application process so that everything is complete (advertising, recruitment, etc.) at least 4 months before the end of the Temporary Foreign Worker’s work permit.
New regulations were introduced by Immigration Refugees and Citizenship Canada on April 1, 2011. Now a Temporary Foreign Worker may not work longer than 4 years in Canada. This limit is cumulative. That means if a TFW works for 2 years, takes a year off, and then returns to work for another 2 years, then the 4 year limit has been reached.
Once a TFW has reached the 4 year limit, they may no longer apply for a new work permit or extend their existing work permit. This limit is not permanent, however. After waiting another 4 years, the Temporary Foreign Worker’s limit will reset and he or she may once again apply for a work permit.
Because this is new legislation, the 4 year limit only applies from April 1, 2011. That means that if the Temporary Foreign Worker has worked before April 1, 2011, that work will not be counted towards the 4 year limit.
Even though an employer has received a positive Labour Market Impact Assessment from Employment and Social Development Canada, that doesn’t mean that it is infallible. Under certain circumstances, a positive LMIA can be overturned. ESDC may reassess an employer at any time and can revoke a positive LMIA if:
The employer provided misinformation or attempted to obscure details of the job conditions.
New information shows that by employing the Temporary Foreign Worker(s), the Canadian labour market is being affected in a negative way.
The employer has been added to the list of ineligible employers maintained by ESDC
Even if an LMIA is revoked, it is important to note that a Temporary Foreign Worker who has already received their permanent residence status will not have it cancelled.
The employer submitting a LMIA application is the first step in ensuring they will be able to successfully hire a Temporary Foreign Worker. Even after the LMIA is approved, there are not guarantees that the Temporary Foreign Worker will receive a work permit from Immigration Refugees and Citizenship Canada. Each foreign worker will be assessed on his or her own merits.
Because of this 2 stage application, there are many factors to consider. All appropriate forms must be properly filled out and all necessary supporting documentation must be provided. Additionally, if an employer already has Temporary Foreign Workers in its employ, they will need to be proactive in submitting additional LMIA applications if they wish to extend the workers’ contracts.
If you are a Canadian employer considering applying for a Labour Market Impact Assessment or a Temporary Foreign Worker who wishes to apply for a work permit based on a positive LMIA, allow our legal team to assist you. Our group of Canadian immigration lawyers and regulated Canadian immigration consultants have the knowledge, experience, and expertise to guide you through all the steps of your application.
