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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

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Agenda1. What is an LMIA?

• Recruitment Tips • Transition Plan

2. Global Talent Stream

3. Employer Compliance• Inspections

3What is an LMIA?

What is an LMIA?The Temporary Foreign Worker Program (TFWP) allows employers to hire temporary foreignworkers and to promote Canada’s economic and labour interests by filling genuine labourneeds.A Labour Market Impact Assessment (LMIA) is sometimes required before a prospective foreignworker mayobtain a Work Permit. (There are various LMIA-exempt Work Permits.)

4Regular versus Permanent LMIA

Regular LMIA• Used to support

Work Permit – can also be used to support PR

• Filed with applicable ESDC office in the province of the work location

• $1,000 government processing fee

Permanent LMIA• Can be used to support just PR

or to support PR +Work Permit• If just PR, there is no $1000

government processing fee• File with ESDC office in St John,

New Brunswick • *If a company has not been in

operation for at least 1 year, cannot file a permanent LMIA

5First Steps

First Steps1. Review job description to determine NOC code2. 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 requirements2. 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

6Program Divided into Two Streams

High WageAt-or-above provincial median wage (as determined by ESDC)Transition plan required10 day processing available for some occupation streams (highest demand, highest paid or short duration)

Low Wage Below provincial median wage (as

determined by ESDC) Phased in cap on % of low wage TFW

at any worksite No LMIAs for Food Service,

Accommodation and Retail Sectors in regions of unemployment at-or-above 6%

LMIA valid for 1 year

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8Recruitment

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 )

9Advertisement Content

Advertisements 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

10Variations to Recruitment (not on the list)

UNIQUE 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

11The Transition Plan

Transition 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 apprenticesor• 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

12The Transition Plan - Activities

Activities 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

1310 Day Processing

10 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

14Work Permit

Work 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

15Global Talent Stream

GLOBAL TALENT STREAM

16Global Talent Stream

Global 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

17Eligibility for the Global Talent Stream

Global 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.

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Category A Category B

Unique and Specialized Talent

• Advanced knowledge of the industry;• Advanced degree in an area of

specialization of interest to the employer; AND/OR

• Minimum of five years of experience in the field of specialized experience; AND

• A highly paid position with a salary of usually $80,000 or more.

Global Talent Occupations List

• NOC 0213 –Computer and information systems managers;• NOC 2147 –computer engineers (except software engineers and designers);• NOC 2171 –Information systems analysts and consultants;• NOC 2172 –Database analysts and data administrators; • NOC 2173 –Software engineers and designers;• NOC 2174 –Computer programmers and interactive media developers; • NOC 2175 –Web designers and developers; • NOC 2241 –Electrical and electronics engineering technologists and

technicians who earn a wage of at least $38.94; • 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.

19Labour Market Benefits Plan

Labour 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

20Employer Compliance

EMPLOYER COMPLIANCE

21Who is impacted?

Employer 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)

22Limited Justifications

Employer ComplianceESDC 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

23Inspections

Employer 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

24Consequences of Non-Compliance

Sanctions • 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

25The AMP Regime

Possible 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.

26Voluntary Disclosure

Voluntary 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

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Questions?

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R a v i J a i n , B . A . ( H o n s . ) , L L . B . , L L . M . , C . S .G r e e n a n d S p i e g e l L L P3 9 0 B a y S t r e e t , S u i t e 2 8 0 0To r o n t o , O N M 5 H 2 Y 2C a n a d ar a v i j @ g a n d s . c o m+ 4 1 6 . 8 6 6 . 2 1 8 6

https://www.linkedin.com/in/ravikrjain/

@RaviRandalJain