Immigration Law for HR: How to Hire Temporary Foreign WorkersAugust 2, 2018 9:22 am
The good news: Temporary foreign workers (TFWs) can make valuable contributions to your organization. The bad news: To hire a TFW, you may need to get a Labour Market Opinion (LMO) from Service Canada. Here’s what HR managers need to know to navigate the LMO process; we’ll also show you how to take advantage of a new HRSDC program that enables you to get an accelerated Labour Market (A-LMO) for a highly skilled TFW in just 2 weeks.
What a Labour Market Opinion Is
Like other free market economies, Canada seeks to balance the virtues of immigration with the need to protect its own citizens against unfair foreign competition. The LMO process allows Service Canada to strike this balance on a case-by-case basis. To get a positive LMO (aka an “employment confirmation”), the employer seeking to hire the TFW must show that it can’t find suitable Canadians/permanent residents for the job and that letting the applicant work in this country won’t have a negative effect on the Canadian labour market. Securing a positive LMO can be a complex process that typically takes at least 3 months to complete.
PHASE 1: DECIDE WHETHER TO SEEK AN LMO
The first phase in the LMO process is deciding whether you even need an LMO to hire the TFW. An LMO is necessary to work in Canada only if the foreign worker:
- Needs a work permit; and
- Isn’t exempt from LMO requirements.
Work Permit Needed: Foreign nationals need a work permit to work in Canada unless they’re covered by an exemption (under Section 186 of the Immigration Regulations). Key exemptions:
- Business visitors;
- Official diplomats and foreign representatives;
- Full-time students with study permits;
- Students in a health field receiving professional training from a medical teaching association in Canada;
- Performing artists and athletes here for a limited engagement; and
- Members of executive committees organizing conventions or meetings in Canada.
No LMO Exemption Applies: Foreign nationals who need a permit don’t need an LMO if they’re in a category exempt to LMO requirements, including:
- Professionals, traders, investors and business people in Canada to work under certain international agreements like NAFTA;
- Some types of entrepreneurs and intra company transfers;
- Participants in exchange programs;
- Certain academics, students and co-op students; and
- People doing certain kinds of religious or charitable work.
Categories of occupations that generally do require an LMO include high-skilled and lower-skilled occupations, seasonal agricultural workers and live-in caregivers. If you think the position is subject to an LMO exemption, you can get official confirmation from a Citizenship and Immigration Canada (CIC) TFW Unit located in Moncton, Montreal, Toronto, Calgary or Vancouver. The CIC officer will ask you for information about the job offer, employment and employee and either grant official verification of the LMO exemption or deny it and tell you to apply for the LMO.
PHASE 2: APPLY FOR THE LMO
To obtain an LMO, you must submit an official Foreign Worker Application for a Labour Market Opinion application form to the nearest Service Canada Centre.
Did You Try Hard Enough to Find a Canadian?
In reviewing the application, Service Canada will evaluate whether you made sufficient efforts to recruit or train Canadians/permanent residents for the job. How? By relying on minimum advertising guidelines for filling TFW positions with Canadians published by HRSDC in 2009. The guidelines vary depending on for particular occupations involved. HRSDC criteria are based on occupations listed in the National Occupational Classification system for skills levels O, A, B, C and D:
- Category O covers senior management and requires advertising through recruiters, in newspapers or online;
- Categories A and B cover higher skilled occupations requiring a university or college degree and, in some case, a specific number of years of experience, and requires advertising in Canadian job bank for at least 14 days and up to 3 months, as well as secondary advertising in online websites such as workopolis or a newspaper with wide circulation; and
- Categories C and D cover low skill occupations such as the construction trades and seasonal agricultural workers. Advertising in the Canadian job bank is required in the same way as for categories A and B. In addition, employers are encouraged to conduct ongoing recruitment efforts, including in communities that face barriers to employment (e.g. Aboriginal peoples, older workers, immigrants/newcomers, people with disabilities and youth).
Other specialized advertising requirements apply to groups like academics and live-in caregivers. No matter which occupation is involved, you’ll need records documenting your conclusion that there were no qualified Canadians available, including the advertising you used, any candidates you interviewed and why you rejected them.
Are Wages and Conditions in Line with the Norm?
Another factor Service Canada will consider in reviewing your LMO application is whether the wages and working conditions you’re offering the TFW are consistent with norms for the occupation, i.e., ones that would be acceptable to a Canadian worker and aren’t exploitative of the TFW. You can use the labour market data from workingincanada.ca to determine minimum, maximum and average salary for the particular NOC occupational code and experience level in different parts of the country. Rule: For purposes of meeting LMO requirements, you must pay at least the 3-year average for the position. Unfortunately, Service Canada doesn’t figure employee benefits and other rewards into its TFW wage calculations.
What Other Factors Does Service Canada Consider?
In evaluating the LMO application, Service Canada will evaluate other factors like whether:
- The TFW is likely to fill a labour shortage;
- There’s a labour dispute in progress—you can’t use TFWs to replace striking workers;
- Hiring the TFW will result in transferring skills or knowledge to Canadians or creating or retaining employment for Canadians, and
- An employer-employee relationship exists where the TFW agrees to work full-time for a specific wage/salary.
What Happens If Service Canada Says No?
Service Canada will notify you in writing of its decision, typically within 3 months. If the answer is no, you have 2 options: Accept the decision or challenge it. Simply disagreeing isn’t enough. To get a decision reviewed, you must submit relevant new information to the Service Canada Centre listed in the refusal letter. Using a skilled immigration lawyer may be able to help you get the decision overturned.
PHASE 3: TFW GETS WORK PERMIT
When and if you get a positive LMO from Service Canada, you can hire the TFW but still have a couple of hurdles to clear. First, the TFW must get a permit to work in Canada (assuming, of course, the worker isn’t in one of the categories exempt from permit requirements discussed above.) Assuming the TFW hasn’t yet entered Canada, the work permit can be obtained either at a port of entry or from outside Canada via visa post.
Information TFW Must Provide to Get Work Permit
Visa officers may request the following information from the TFW:
- Proof of identity;
- Valid passport or travel document guaranteeing re-entry to issuing country;
- 2 photos of the TFW and all accompanying family members;
- Copy of the job offer or signed employment contract;
- Copy of the positive LMO; and
- Proof of immigration status.
Fees Required to Get Work Permit
The following fees apply:
- Fee to process work permit application: $150;
- Fee to process temporary resident visa (TRV): $50;
- Total fee for both TRV and processing work permit: $150; and
- Fee for accompanying family members: $75 each.
When TFW Must Undergo Medical Exam
A TFW doesn’t need to take a medical exam for a job lasting 6 months or less. But medical exams are required if the TFW:
- Is to be hired for an occupation designated as requiring an exam because it involves public health;
- Is to be hired for longer than 6 months; or
- Resided for 6 or more months in any designated countries in the year before applying for the permit.
If a medical exam is required, the TFW is responsible for paying the exam fee directly to the medical practitioner.
PHASE 4: TFW ALLOWED INTO CANADA AT PORT OF ENTRY
Finally, to enter Canada, TFWs who secure a positive LMO and work permit (assuming they need those documents) must present the following documents to the Border Services officer at the port of entry:
- Passport or travel document that’s valid for the period of the authorized stay (other than US citizens or residents of Greenland or St. Pierre and Miquelon);
- Signed job offer or employment contract;
- Work permit approval (or permit exemption confirmation) from CIC;
- Copy of positive LMO from Service Canada (or LMO exemption confirmation from CIC);
- Evidence of credentials, including education, professional and work experience (if applicable); and
- Temporary resident visa, if applicable.
THE ACCELERATED LMO
In April 2012, Service Canada adopted a new program allowing employers to get LMOs in 10 business days. Here’s a rundown of the new accelerated LMO program:
Can You Participate in the Accelerated LMO Program?
Yes, if you recruit TFWs:
- For higher skilled positions, i.e., NOC categories 0, A and B; and
- Do it outside Québec.
Exception: Accelerated LMO doesn’t apply to hiring in the film, entertainment and agriculture sectors.
What Eligibility Requirements Apply to Accelerated LMO?
To participate in accelerated LMO, employers must be able to show that they have:
- Been issued at least 1 positive LMO in the past 2 years;
- A clean record of compliance with LMO program requirements in the past 2 years;
- Not been the subject of an investigation, infraction or serious complaint relating to LMO matters; and
- No unresolved violations or contraventions under provincial employment and recruitment laws.
Does Service Canada Use the Same Criteria for Approving Accelerated LMOs?
Yes. Notably, the advertisement and recruiting efforts required for Canadian workers under the regular LMO process pertain to accelerated LMOs as well. But there’s one notable change: Under accelerated LMO rules, employers can offer TFWs up to 15% less than the posted wage for Canadians. This provision has become a lightning rod for public criticism by labour advocates.
Do Any Other Special Requirements Apply to Accelerated LMOs?
Yes. In addition, to using the new accelerated LMO process, you must agree to participate in a post-LMO compliance review of any positive accelerated or standard LMO or LMO issued in the previous 2 years. It’s expected that on average, 18% of positive accelerated LMOs will be selected for compliance review each year. If you’re found to be not in compliance with the accelerated LMO rules, you could be barred from using it in future, have other pending LMOs refused and have the results sent to other federal/provincial departments for further investigation.
Under both normal and accelerated LMO rules, you must comply with the terms of the LMO, including wages, working conditions and location during the term of employment. Employers are also subject to random audits, particularly where they regularly employ large numbers of foreign workers. If you’re found not to be in compliance with your LMO, you won’t be able to hire any more temporary foreign workers for 2 years.
In addition, TFWs can sue you for employment standards violations. One notable example is the recent class in BC filed by over 70 foreign workers from the Philippines against the local Denny’s restaurant that brought them to Canada alleging improper travel charges and failure to pay overtime. And now that provinces like Ontario, Québec and Saskatchewan, have or are considering adopting beefed up employment standards law protections for foreign workers is likely to grow in the months and years ahead.