Canadian employers facing a labour or skills shortage may be permitted to hire a temporary foreign worker to fill the role if genuine efforts have been made to initially hire a Canadian or permanent resident. Specifically, to be permitted to do so, an employer must first apply for and obtain a Labour Market Impact Assessment (“LMIA”) from Employment and Social Development Canada (“ESDC”). Given the complexity of this type of immigration application, we discuss some key considerations to take into account before proceeding with an LMIA below.
WHAT IS AN LMIA?
An LMIA is an assessment made by ESDC as to the impact that hiring a temporary foreign worker will have on the Canadian labour market.
Specifically, an employer will need to apply for an LMIA and obtain a positive/neutral decision prior to making an application for a work permit for any temporary foreign worker.
If a positive/neutral LMIA is granted by ESDC this means that ESDC is of the opinion that hiring the temporary foreign worker will have a positive/neutral impact on the Canadian labour market. The employer can then use the granted LMIA to subsequently apply for a work permit for the temporary foreign worker.
WHAT STEPS ARE INVOLVED IN APPLYING FOR AN LMIA?
When applying for an LMIA, an employer must convince ESDC that hiring a temporary foreign worker to fill a position will not have a negative impact on the Canadian labour market. To do so the employer must:
- Advertise the role on a variety of platforms for a minimum duration;
- The advertisement must adhere to very strict conditions – an employers “standard” advertising will usually not comply with such requirements.
- Monitor applications received for the role;
- Interview potentially qualified applicants; and
- Justify, for each applicant, why they could not be hired to carry out the role instead of a temporary foreign worker.
LMIA applications are routinely rejected for failure to adequately demonstrate that a Canadian/permanent resident either could not be found to carry out the role or could not be trained. Given this, it is extremely important for employers to work with experienced counsel to ensure that their LMIA is as strong as possible.
CAN AN EMPLOYEE APPLY FOR AN LMIA?
An LMIA application is an application that must be made by an employer since it is the employer that is seeking permission from ESDC to hire a temporary foreign worker over a Canadian/permanent resident. As such, while an employee can assist with the process, the employer is the applicant and therefore needs to be cooperative throughout the process.
HOW CAN I MAKE MY LMIA APPLICATION STRONG?
In order to draft a strong LMIA application, it is important to focus on how the employer has demonstrated genuine and substantial effort to secure a Canadian/permanent resident for the role.
Employers should also be prepared to justify why a Canadian/permanent resident could not be trained to fill the role.
If the position requires certain skills/expertise, these should be highlighted to the extent that is justifiable given the National Occupational Classification Code that the application is being made pursuant to. Employers should speak to experienced counsel to ensure that they craft an advertisement that includes justifiable skills/duties criteria.
CONTACT SULTAN LAWYERS IN TORONTO FOR ADVICE ON HIRING TEMPORARY FOREIGN WORKERS
We encourage you to contact, Toronto employment lawyers, advising employers on workplace immigration, Sultan Lawyers, for a free call back or flat-rate consultation to better understand the LMIA process and whether it might be right for you. Please contact us by telephone at 416-214-5111 or here.
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