Alternatives to the LMIA Process for the Importation of Skilled Labour

The January 22, 2019 edition of Business in Vancouver reports that starting in 2019, thousands of skilled labour and trade people will be needed for a handful of multi-billion dollar constructions projects: Site C, LNG Canada and Coastal Gas.  These set of projects only goes to illustrate a long-standing fact that there is a significant shortage of skilled labour.  The BIV article is directed at the shortage of building trades.

The article states that the construction industry organization, Build Force Canada, has estimated 17,000 non-residential constructions jobs will be needed between 2019 and 2021 if all major projects go ahead. The bulk of construction hiring is expected to start mid-2020 and Build Force warns stacked projects could create labour shortages.

The article quotes Tom Sigurdson, the executive director of BC Building Trades, indicating his organization is working with industry, government and unions to predict labour needs and coordinate between projects so that workers from across Canada and, if need be, the United States are available.  Mr. Sigurdson is quoted as indicating the shortages will not be a problem.  Yet, in this last comment is an acknowledgement that foreign labour – that is, American labour – will be needed to fill the gaps.

The article also notes how BCIT and Camosun provide skills training.

The problem is that whoever is providing skills training, such training demands time between induction of labour into training programs and completion of those programs. The HR divisions of companies need to fill the existing gaps in a company’s workforce with foreign workers now.

Secondly, the demand is not just for trades but for workers in other sectors of the economy.  The same BIV edition of January 22 to 28, 2019 in a separate article refers to the tightening labour market for professionals.  The demand for IT professionals in the local economy is a particular concern.

Reducing Wait Times

Regardless of the nature of the skilled labour, whether at a professional, technical or trade level, human resources managers do have recourse to Service Canada and the Labour Market Impact Assessment program. While strides have been made in terms of the Global Talent Stream expediting the entry of  foreign workers, the Global Talent stream requires adherence to the Service Canada requirements in that program.  Outside of the Global Talent Stream Service Canada, as its website warns is still experiencing significant delays in processing LMIAs.

Those delays do not make the conventional Service Canada processing of LMIA applications as necessarily a commercially viable option to fill labour shortages with foreign workers.

While the focus of NAFTA, CETA and the new implemented Trans Pacific Trade Agreement is tariff reduction, each of these of these agreements have a labour mobility clause that relieves the nationals of member countries, in certain specified categories, from the requirement to await the outcome of Service Canada deliberations.

A word of warning: although in many instances there is no temporary resident visa requirement for nationals of countries that have executed these free trade agreements, where a temporary resident visa requirement is identified by the immigration regulations, the foreign worker will need a visa which will require filing for the work visa and work permit at a visa office, where there will be administrative delays. Check processing times by visa office on the IRCC website.

Where the worker is a foreign national from a country that is visa exempt, that worker may apply at the port of entry by reason of Regulation 198.  This will expedite the process immeasurably.

LMIA Exempt Occupations

The key point is to examine the labour mobility provisions and determine if the occupation which the employer needs to fill falls within the enumerated guidelines in one of the free trade agreements.  NAFTA applies to US and Mexican nationals.  CETA applies to the nationals of the  28 member nations of the European Union. The Transpacific Trade Agreement applies to those countries who have executed the agreement. As of the date of his article, the signatories are Australia, New Zealand, Japan, Mexico,  Singapore and Vietnam.

NAFTA has a list of 63 occupations that qualify under the Professional category.  Most of the enumerated list of occupations demands a baccalaureate degree but there are specific exemptions from the baccalaureate requirement such as scientific technologists and management consultants that are exempt the minimum baccalaureate requirement.  NAFTA does not assist skilled trades in terms of LMIA exempt professions.

CETA allows for nationals of European member states in two professional categories, contractual service suppliers and independent professionals to obtain work permits without the LMIA process.  For Canada, sectoral commitments apply to occupations listed under Skill Level O and Skill Level A, managerial and professional categories as itemized.  This list does not assist employers with the importation of skilled trades.

The Trans Pacific Partnership to which Canada is one of the existing signatories will permit entry of eligible candidates in specialty occupations, on a country by country basis.  These occupations are defined as an occupation that falls within the NOC level B, which does include an enumerated list of skilled trades, unlike NAFTA and CETA.

Therefore, the most convenient method of filling skilled trade positions, if the employer is inclined to look to foreign jurisdictions to fill the positions on an urgent basis is to recruit nationals from signatories to the Trans Pacific Partnership where possible.

These individuals with their LMIA work permit exemptions in hand may apply at the Port of Entry as they do not need temporary resident visas (Vietnam being the exception).

The point of this exercise is to remind HR professionals that the importation of workers, whether professionals or trades, does not always demand an application to Service Canada.  In particular, where there is an urgent need to fill a position or positions in short order, the free trade agreements that contain labour mobility provisions may be applicable.