A need to hire someone to do the right job, $000’s in hiring expenditure, months of time and efforts is a considerable amount of investment made by an employer to get a Temporary Foreign Worker (TFW). For employers, it start with a quick fact check. Do you need an LMIA or it falls under exemption? Are you eligible to apply? How urgently do you need a TFW? The goal is to do it right and efficiently.
There is no margin of error!
Labour Market Impact Assessment (LMIA) process of Canada is a system to prove that no Canadian citizen or permanent resident is available, ready or willing to fill the position, and there is no other option but to hire a foreign worker. Even after having a set government process and assistance, there are many areas where an employer can go wrong, the top 5 are:
1. Employer Interview:
The goal is to convince the officer for an immediate need to hire a TFW. LMIA is not issued if eventually an officer believes that hiring a foreign national will take a job away from a qualified Canadian. Generally, an officer conducts a scheduled telephonic interview with the employer before making the decision. The employer should be ready to answer LMIA questions without making any guesses or mistakes.
The interview is based on understanding the real and immediate need to hire a Foreign Worker. Employers hiring a foreign national for the first time should be extra prepared to describe: their business operations, eligibility to hire a foreign worker, business compliances, benefits of hiring, recruitment efforts, reasons for each rejected candidates and a transition plan. Whereas an experienced employer should also know the limit to which one can hire foreign workers. Any discrepancies or controversies between the application and the employer’s responses could result in a straight refusal.
When allowed by ESDC, employers can request their representatives to join the interview and help with some answers. Based on our experience of representing employers in LMIAs applications, certain questions are common and almost always asked. However, each employer’s situation is unique. This may depend on the location, number of positions, type of worker, urgent need, current situation in the company, unionization in the company, business environment, and more… We recommend employers to receive a training and a customized questionnaire from a consultant or a lawyer who understands this process very well.
2. Worker’s Profile:
Getting an LMIA is just the start of the story. The profile already identified or to be identified has to qualify for the job requirements as well as immigration norms. Not everyone is qualified, and work permits also get refused.
Work Permit for a relative is discouraged during this process. A proven education and experience required for the job can only make their way. Also, from the Canadian context, do the worker meet the language standards as well as the admissibility requirement is a key to determine before moving ahead with the selected applicant.
3. Wage rate and Job offer:
Failure to meet wage requirements as per the immigration regulations is a firm reason for refusal. The wage for each position keeps changing with the time and location. One must double check the existing standards before applying. Foreign workers in Canada are offered the same job standards as their Canadian counterparts. LMIA application wants the employers to provide information on the wages, benefits, and general working conditions of the job being offered. Employers must pay the salary equal to or greater than the prevailing wage for their occupation. Employers should thoroughly research the salary standards for the job position.
Job offer, once made, should be consistent with the requirements, salary and benefits listed before advertising the job. It should be detailed enough to indicate the duties and responsibilities of the worker that is clear to identify the NOC code.
Employers with 10 or more employees can apply for an LMIA, but are subject to a cap of 10% of TFWs to be employed under low-wage positions. A correct LMIA application process is to be followed while determining High Skill and Low Wage or Low skill and high wages positions.
Employer Compliance
Recruiting a Foreign National is just a start of the story. Service Canada and provincial authorities can inspect employers randomly for the compliance to adhere the terms of a job offer approved through LMIA.
Non-compliance result in a warning, a penalty, or a ban from hiring temporary workers. The penalty can ranges from $500 to $100,000 per violation, up to a maximum of $1,000,000 over one year. The ban can range from 1 year to permanent. The factors that the investigators will assess can be found here. The list of all Canadian employers currently found non-compliant can be found here.
4. Recruitment efforts:
There are few exemptions to the recruitment efforts requirements under selected LMIA streams. Nevertheless, majority of the LMIA streams require it. Insufficient or vague recruitment efforts are a sure reason for refusal. A full 4 weeks of targeted efforts with consistency in what kind of profile is needed and advertised is the must. In addition to the www.jobbank.gc.ca, other national and provincial recruitment platforms must be explored.
An LMIA application will be refused if recruitment standards are not met. To mitigate this, when possible, employers should recruit for a period of time longer than the minimum amount required and comply with the immigration norms set to hire a foreign national. If a Canadian citizen or Permanent Resident is selected from this process, an employer must cease their efforts to hire a foreign national,
They should also be aware that some positions may be advertising exempt. Many advertising exemptions vary from province to province.
5. Transition Plan:
In order to reduce the dependency on temporary foreign workers over a period of time, employers are expected to plan and engage in activities to recruit, hire, and train Canadians, proactively. Additional recruitment activities to reach minority community and other people in Canada is much anticipated. Projected numbers of Canadians or permanent residents to be recruited from such activities are a part of the transition plan.
Lastly, employers are required to report back to ESDC with the results of the activities they implemented as part of their transition plan. The results will be compared to their submitted projections and will be evaluated if the employer is audited or seeks to re-apply for a LMIA in the future.
Employers can request an exemption from the requirement efforts to submit a transition plan. If proven that the position requires a unique skill set or is based on a temporary contract/project.