Labour Market Impact Assessment (LMIA) Applications: Will You Be Successful? - Ravi Jain, B.A.(Hons.), LL.B., LL.M., C.S. Partner, Green and ...
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Labour Market Impact Assessment (LMIA) Applications: Will You Be Successful? Ravi Jain, B.A.(Hons.), LL.B., LL.M., C.S. Partner, Green and Spiegel LLP 1
Agenda
1. What is an LMIA?
• Recruitment Tips
• Transition Plan
2. Global Talent Stream
3. Employer Compliance
• Inspections
Page title goes here as footer 2What is an LMIA?
The Temporary Foreign Worker Program (TFWP) allows employers to hire temporary foreign
workers and to promote Canada’s economic and labour interests by filling genuine labour
needs.
A Labour Market Impact Assessment (LMIA) is sometimes required before a prospective foreign
worker mayobtain a Work Permit. (There are various LMIA-exempt Work Permits.)
What is an LMIA? 3Regular LMIA Permanent LMIA
• Used to support • Can be used to support just PR
Work Permit – can or to support PR +Work Permit
also be used to • If just PR, there is no $1000
support PR government processing fee
• Filed with applicable • File with ESDC office in St John,
ESDC office in the New Brunswick
province of the work • *If a company has not been in
location operation for at least 1 year,
• $1,000 government cannot file a permanent LMIA
processing fee
Regular versus Permanent LMIA 4First Steps
1. Review job description to determine NOC code
2. Confirm salary offered meets prevailing wage (https://www.jobbank.gc.ca)
3. Confirm job requirements as per NOC code
1. watch for overly onerous education, language, experience requirements
2. E.g, do not ask for supervisory experience when the NOC only requires general
experience in the industry (do not ask for managerial experience for a supervisory role)
4. Ensure foreign worker meets job requirements
First Steps 5High Wage Low Wage
At-or-above provincial Below provincial median wage (as
median wage (as determined by ESDC)
determined by ESDC) Phased in cap on % of low wage TFW
Transition plan required at any worksite
10 day processing No LMIAs for Food Service,
available for some Accommodation and Retail Sectors
occupation streams in regions of unemployment at-or-
(highest demand, highest above 6%
paid or short duration) LMIA valid for 1 year
Program Divided into Two Streams 67
Recruitment
• Prior to submitting the application, employer must advertise
• 3 sources for a month minimum -we recommend 4
• Unless CEO/CFO, Job Bank must be one source.
• Collect applications/resumes as they come in and providing a detailed
recruitment summary
• Ensure all sources are independently posted. “Scraped” ads do not count.
• Ensure to use industry specific sources wherever possible – especially for
cooks/chefs and trades based roles
• (Ex: target culinary colleges for chefs and localwork.ca for trades-based )
Recruitment 8Advertisements Include
• Business name and address
• Work location – city, province
• Job title
• Job Duties
• Wage
• Benefits
• Whether the position is project based or permanent
• Minimum job requirements and preferred skills/credentials
Advertisement Content 9UNIQUE POSITIONS
• When the position is extremely unique, we can ask for a discretionary
recruitment exemption
INTERMITTENT POSITIONS
• When the position is intermittent and the TFW will be in Canada for no longer
than 120 days over a period of time (up to 1 year), we can ask for a
discretionary recruitment exemption.
• In this case, Service Canada will want a detailed travel schedule
• The Work Permit will be issued for 1 year, to cover the intermittent entry
Variations to Recruitment (not on the list) 10Transition Plan
• Required for High-Wage
• Transition plan is in addition to recruiting and advertising requirements in the LMIA that
ensure Canadians and Permanent Residents are hired first
• Employers must have a strategy to train, share skills with and/or transition to a Canadian
workforce through investment in training or hiring apprentices
or
• Commit to assisting the TFW transition to becoming a permanent resident
• Employers will be assessed on the implementation of their plan during audits and renewals
• Employers failing to implement their plan may be denied new LMIAs
The Transition Plan 11Activities may include:
• Offering increased wages,
flex-hours or other benefits
• Campus recruitment
• Job Fairs
• Recruiting from
underrepresented groups
• Apprenticeship, Co-Ops and
other training
• Supporting a permanent
residency application for the
foreign worker
The Transition Plan - Activities 1210 Day Processing
• 10 (business day) processing if the wage falls within the top 10% of wage
earners in the province.
• E.g, Ontario: wage must be at least $46.00 per hour (equivalent to $95,680
per year based on a 40 hour work week)
• Regular processing: ~ 4-10 weeks
10 Day Processing 13Work Permit
• If LMIA approved, apply for Work Permit
• Onus then on Foreign Worker to show meets requirements of the position as
was listed in the LMIA application (i.e. education, experience, skills)
• Visa exempt foreign nationals can apply at the port of entry
• Foreign nationals requiring a visa must apply at a overseas processing centre
Work Permit 14GLOBAL TALENT STREAM
Global Talent Stream 15Global Talent Stream
• Skip advertising!
• No transition plan!
• Expedited processing times
• For the LMIA: supposed to be 10 day processing
• For the Work Permit: supposed to be 10 day processing
(if applicant is overseas)
• Employers must complete a Labour Market Benefits Plan
• Employers must pay prevailing wage
Global Talent Stream 16Global Talent Stream
Category A
• Must be referred to the Global Talent Stream by one
of Employment and Social Development Canada the
Global Talent Stream’s designated partners and are
hiring unique and specialized talent (the “unicorns”)
Category B
• Occupations on the Global Talent occupations list.
Eligibility for the Global Talent Stream 17Category A Category B
Unique and Specialized Talent Global Talent Occupations List
• Advanced knowledge of the industry; • NOC 0213 –Computer and information systems managers;
• NOC 2147 –computer engineers (except software engineers and designers);
• Advanced degree in an area of • NOC 2171 –Information systems analysts and consultants;
specialization of interest to the employer; • NOC 2172 –Database analysts and data administrators;
AND/OR • NOC 2173 –Software engineers and designers;
• Minimum of five years of experience in the • NOC 2174 –Computer programmers and interactive media developers;
• NOC 2175 –Web designers and developers;
field of specialized experience; AND • NOC 2241 –Electrical and electronics engineering technologists and
• A highly paid position with a salary of technicians who earn a wage of at least $38.94;
usually $80,000 or more. • NOC 2283 –Information systems testing technicians who earn a wage of at
least $37.50;
• Sub-set of 5241 Digital Media and Design –position requires a minimum of
five years of industry experience, and skills requirements including: 3D
modeling, virtual and augmented reality; animation, level editing, editor and
pipeline software and tools in applicable industry; other specialized
knowledge of software framework in applicable industry (for example,
Unreal 3.0) and/or, Experience in planning and managing a project and earn
a wage of at least $38.406.
18Labour Market Benefits Plan
• Labour Market Benefits Plan must show positive impact on the
Canadian labour market.
• Mandatory Benefits for Category A: creating jobs
• Mandatory Benefits for Category B: increasing skills and
training investments
• Complementary benefits: job creation, investment in skills
and training, transferring knowledge to Canadians and PRs,
enhanced company performance and implementing best
practices or policies as an employer for your workforce.
• Employers must provide activities and targets for each benefit
Labour Market Benefits Plan 19EMPLOYER COMPLIANCE
Employer Compliance 20Employer Compliance
• Inspections to ensure the employer is adhering to the terms and
conditions outlined in the job offer and application. Regulations cover
both:
• Labour Market Impact Assessment (LMIA) work permits
• LMIA-exempt work permits (e.g., NAFTA work permits and intra-
company transfer work permits within the International Mobility
Program)
Who is impacted? 21Employer Compliance
ESDC will consider limited justifications for violations if:
• Errors made in good faith
• Reasonable efforts were made to comply
• They result from a genuine misinterpretation of obligations or
requirements
• They result from changes to Federal or Provincial law
• They result from changes to provisions of a collective bargaining
agreement
Limited Justifications 22Employer Compliance
• 25% of all employers of TFWs inspected each year
• Authority to conduct onsite and warrantless inspections
• Can go back 6 years
• Inspectors are permitted to interview both foreign workers and Canadian
employees
• May demand production of any document necessary to demonstrate
compliance
• Banks and Payroll companies can be compelled to provide records to
verify information provided by employers
Inspections 23Sanctions
• Administrative monetary penalties
• $500-$100,000 per violation
• Monetary penalties are cumulative, $1M cumulative cap per annum
• Violations are distinct, and separate:
• The same violation relating to multiple foreign nationals count as
separate violations
• Different violations relating to the same foreign national count as
separate violations
Consequences of Non-Compliance 24Possible Consequences
• Revocation of LMIAs
• Published on an ineligible employers list online
• List includes both employers who have been suspended and employers found to
be in violation of rules, and will include the consequences have been imposed
• Fines, and criminal charges and penalties for misrepresentations to ESDC
• Information sharing by ESDC may trigger employment standards,
occupational health and safety, and other investigations
• Non-compliant employers may also face a period of ineligibility to hire
foreign nationals. Ineligibility is not cumulative. The longest period
applies.
The AMP Regime 25Voluntary Disclosure
• If you become aware of non-compliance you may make a voluntary
disclosure to ESDC
• This does not mean you will not face penalties, but these may be
reduced
• Disclosures must be complete, and must be made prior to any
compliance and enforcement action being undertaken
• An “acceptable” disclosure may result in 4 points being deducted per
violation
• Previous compliance history, disclosure history, and the severity of the
violation will be considered when evaluating disclosures
Voluntary Disclosure 26Questions?
27Ravi Jain, B.A.(Hons.), LL.B., LL.M., C.S.
Green and Spiegel LLP
390 Bay Street, Suite 2800
To r o n t o , O N M 5 H 2 Y 2 @RaviRandalJain
Canada https://www.linkedin.com/in/ravikrjain/
ravij@gands.com
+416.866.2186
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