Hiring Foreign Workers 101

By: Nicholas Woodward, Associate Lawyer and Monica Diaz, Senior Paralegal

It’s no secret that employers in many industries are facing labour shortages and are struggling to find Canadians and permanent residents who are available to perform the job. In these situations, employers can consider the Temporary Foreign Worker Program (TFWP) and submit an application for a Labour Market Impact Assessment (LMIA).

Our office regularly assists numerous employers across all sectors in  successfully obtaining positive LMIAs for talented employees. In this blog, we want to share an overview of the LMIA application as well as the process – it’s not as complicated as it seems.

What is a Labour Market Impact Assessment (LMIA)?

An LMIA is a document issued by Employment and Social Development Canada (ESDC) that allows employers to hire foreign workers. A positive LMIA will show that there is a need for a foreign worker to fill the job position and that no Canadian or permanent resident is available to perform the job. We often refer to an LMIA as permission granted by the Canadian government for an employer to hire and employ a foreign worker in Canada.  It is the first step in obtaining a work permit for the foreign worker. Once an employer obtains the positive LMIA, then the worker can apply for a work permit.

The LMIA application

The goal of the LMIA process is to determine whether a foreign worker will displace or compromise an employment opportunity for a Canadian or permanent resident of Canada. It’s the government’s attempt to protect job opportunities for Canadians and permanent residents. The test asks whether the employment of the foreign worker would have a positive impact on the labour market (e.g  filling a vacancy that is difficult to fill) or at least a neutral impact on the labour market (e.g. not taking away any opportunities for Canadians/permanent residents).

In order to meet the Temporary Foreign Worker Program test, employers must conduct recruitment efforts to hire Canadians and permanent residents before offering the position to a foreign worker. Specifically, employers must advertise the position on the government of Canada’s Job Bank website as well as two additional methods. The job posting must include details such as work location, job duties, salary, employment conditions, etc.

The position must be advertised for a minimum of 4 consecutive weeks within the 3 months prior to submitting the LMIA application. Employers must keep records of their recruitment efforts (i.e. assessment notes, interviews, etc.).

Once the recruitment process has been completed, employers can prepare and submit the LMIA application. This is done online through the LMIA Online Portal. In the portal, employers must complete an application form and upload documents that prove the legitimacy of their business, that the offer of employment is consistent with reasonable employment needs, as well as the financial ability to fulfill the terms of the offer of employment. 

Navigating the LMIA process

Prior to submitting the LMIA application, employers must take several factors into consideration. These include the following:

(1)   Choosing the right NOC for the position. The National Occupational Classification (NOC) is Canada’s national system for describing occupations. It is important that employers make sure that the NOC code aligns with the duties of the position being offered as foreign workers hired as a result of a positive LMIA must only perform duties that coincide with the occupation they were hired for.

(2)   Choosing the right wage. Employers applying through the TFWP must offer a wage that is within the wage range that they are paying to current employees hired for the same position and work location, or when there are not employees in that position, the median wage posted on Job Bank. The median wage is listed in the middle column, by region.

(3)   Choosing the right LMIA stream. This depends on the particular position that the employer is hiring for.

After submitting the LMIA application

After the LMIA application is submitted, an ESDC officer will review the application for completeness, and then an email notification to complete the payment of the processing fee is sent. The processing fee is $1,000 per position.

The assessment process involves an interview with an ESDC Officer, which the employer must attend and should prepare for.

The processing times to receive a decision varies depending on the stream of the application.

When EDSC concludes that hiring the foreign worker would have a positive or neutral impact on Canada’s labour market, a positive LMIA document is issued. The employee can then apply for a work permit. Depending on the LMIA stream, foreign workers can apply for work permit valid for two to three years.  

It is important to note that the LMIA application is a process driven only by the employer. As such, employers are prohibited from charging or recovering any money spent on the LMIA application to the foreign worker.

Having noted this, many employers reach out to experienced legal counsel for advice and support in preparing and filing LMIA applications, and to know if an LMIA application has a good chance of success in the first place.

If you are interested in discussing the possibility of applying for an LMIA, please contact us! You can book a consultation by sending an email to reception@migrationlawgroup.com or by calling (416) 203-2899 x 30.

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QUESTION:  What does an employer do if an LMIA application is refused?

ANSWER: Employers can challenge the decision made on LMIA applications, or consider whether the position can be filled without an LMIA, through LMIA exempt work permit categories. Stay tuned for our future blog on LMIA-exempt work permits!