LMIA Applications: A Guide for Employers

A CBC article from August 2023 made reference to the fact that there are now some 32,000 foreign workers in British Columbia admitted under the auspices of the Federal Government’s Temporary Foreign Worker Program.

The Temporary Foreign Worker Program provides Canadian employers with the ability to hire foreign workers to fill labour and skill shortages through the instrument of a Labour Market Impact Assessment (the LMIA).  An LMIA is a pre-condition to issuance of an Employer-specific work permit to a foreign worker.

It should be distinguished from the International Mobility Program (IMP), the particulars of which allow for foreign workers to be hired without the necessity of an LMIA, although the new worker will require a work permit unless specifically exempted by Regulation from requiring a work permit to work in Canada.

Failure to meet any of the Government’s LMIA requirements can result in negative decisions after significant waiting periods, ending in frustration for both employer and foreign worker.

While initiatives like the Global Skills Strategy aim to accelerate the pace of importing talent to a mere two weeks, (and that processing time is some what problematic), many employers will be required to use the slower LMIA process when bringing workers into Canada.

Before we address the LMIA process in more detail, and the elements that comprise a an application to Employment and Social Development Canada/Service Canada, it is important to place the importation of foreign workers into context.

Once a Canadian employer has extended an offer of employment to a foreign national, there are several options to consider as follows:

1. Working in Canada Without a Permit

In certain specified instances Canadian immigration regulations permit foreign nationals to work in Canada without a Canadian work permit.  Those instances are enumerated in s. 186 of the Immigration Regulations and include as a typical example, business visitors who enter for brief periods of time for consultations and meetings. Their activities are considered to be work, but do not demand a work permit.

2. Working in Canada While Exempt From Labor Certifications

Canada’s Immigration Regulations also permit certain foreign nationals who do require a work permit, to do so without the need for the prerequisite LMIA, generally under the rubric of the International Mobility Program.  As an example, those foreign workers, who are American or Mexican nationals, and eligible under the Canada-United States-Mexico Free Trade Agreement (CUSMA), as Investors, Professionals or Intra-company transfers, do not need an LMIA in order to obtain a work permit.

There are other Free Trade Agreements to which Canada is a signatory, which do include Labour Mobility clauses that allow nationals of the treaty countries to enter Canada without an LMIA.

These preceding options should always be explored before proceeding to option 3, as the third option requires the prospective employer, as opposed to the employee, to follow a rather laborious process.

3. Applying for Labor Market Impact Assessment

If no exemptions apply, the first step that employers must take when applying for an LMIA is to begin a mandatory 30-day period of advertising the position on a major job website, although there are some exemptions from this time frame.

How to Meet the LMIA Advertising Requirements

To meet the minimum advertising requirements, effective August 28, 2017, the position must be advertised on the Federal Government Job Bank. Prior to August 28, 2017, employers in BC could use the Job Bank’s Provincial counterpart Work BC. Work BC can still be used as one advertisement, but advertising on the Job Bank is now mandatory.

In addition, it is also required that two alternative methods of advertising, consistent with the normal business practice for the occupation, must be conducted. One of the methods used must be national in scope and easily accessed by residents of any province or territory, as people in high-wage positions are often willing to relocate for the job.

The guidelines also state that if those additional methods of recruitment are online, the online advertisements must have unique value and reach different audiences. Therefore you should consider advertising in sources targeting unrepresented groups, such as new immigrants, and aboriginal communities.

We recommend advertising on more than three sites in the event ESDC/Service Canada takes issue with the sources of advertising.

Job Match System

As of August 28, 2017, employers must use the Job Match service when advertising a position.  The Job Match service ranks the candidates in the Job Bank in terms of compatibility with the posted job requirements, using a ranking system of one to five stars.  When seeking to fill a “high wage” position (a position that is above the median wage for the occupation in the Province), the employer is required to invite all job seekers matched within the first 30 days of the advertisements to apply for the position, providing they rated four stars or more.

You must ensure that the job advertisements have been placed within a 90-day period before the date of submission of the application for the Labour Market Impact Assessment.  The ads must run for a minimum of four weeks prior to submitting the LMIA.  At least one ad must remain posted until the decision on the LMIA is rendered.

At the present time, the processing times for an LMIA depend on the nature of the application. At the date of this article, the posted times are as follows:

1. Global Talent Stream                        9 Business Days
2. Agricultural Stream                          11 Business Days
3. Seasonal Agricultural Worker         8 Business Days
4. Permanent Resident Stream          57 Business Days
5. In-Home Caregivers                        20 Business Days
6. High Wage Stream                           44 Business Days
7. Low Wage Stream                             49 Business Days

Regardless of published posted times, it should be noted that processing times are a function of the volume of applications and the number of officers available to process them, and should be considered estimates at best.

The Job Advertisement Format

The contents of your advertisement  must contain the following:

• Your Company’s Name
• Business Address
• Title of the Position
• The Job Duties
• The Term of Employment, i.e. full time permanent
• Wage – a wage range can be used, but certain rules apply, as we’ll discuss below
• Benefits to be offered
• Location of work
• Contact information
• Skills Requirements, in terms of education and work experience
• Working conditions and occupations

Setting Wages

For the purposes of Service Canada, the wage to be paid for the job is, at a minimum,

• Posted prevailing wage for the occupation and work location where the temporary foreign worker will be employed, or
• A wage that is within the same wage range that they are paying their current employees working in the same position and same work location if this range is higher than the prevailing wage.
• Prior to COVID-19, those individuals in the top 10% of wage earners in the Province were eligible for 10 day speed of service for an LMIA, however that program remains suspended.

Fees

The processing fee for an LMIA is $1,000.00 for 1 position.

Employers in BC

No LMIA will be issued to a BC based employer who has not registered with the BC Temporary Foreign Worker Program.

Conclusion

This is a brief overview of the Temporary Foreign Worker Program.

For more detailed information, please contact Boughton Law’s Immigration Section.