Labour Market Impact Assessment (LMIA) – Important Timelines and Considerationsachkarlaw-admin
Canada’s rapidly developing economy needs qualified, skilled, and experienced workers. The Canadian labour market has faced challenges in fulfilling employers’ need for suitable candidates. Some employers spend months or even years looking for the best candidates for a job. The government introduced the Temporary Foreign Worker (TFW) Program to tackle Canada’s labour shortage problem. The Program enables Canadian businesses to hire workers from abroad to fill vacant positions. Most businesses seeking to hire foreign workers must apply for a Labour Market Impact Assessment (LMIA). An LMIA allows the Canadian government to assess whether hiring a person from abroad will have a positive, neutral, or negative impact on the Canadian labour market.
If the officer processing the application determines hiring a foreign national has a positive or neutral impact on the Canadian labour market, then the employer is issued a positive LMIA – enabling the employer to offer the job to a foreign national. Since most hiring decisions are time-sensitive, Employment and Social Development Canada (ESDC) ensures they process the LMIA applications on time.
What is the Average Processing Time for Different Types of LMIA Applications?
The processing time for most Labour Market Impact Assessment applications ranges from ten days to several months, depending on various factors. If an application is accurate and complete in all respects, it is likely to be processed faster.
The processing time for each application commences when Service Canada receives the application and ends when it makes a final decision.
The average processing times for different types of LMIA applications for September 2022 are as follows:
Average Processing time
|Global Talent Stream||9 business days|
|Agricultural stream||15 business days|
|Seasonal Agricultural Worker Program||5 business days|
|Permanent residence stream||22 business days|
|In-home caregivers||27 business days|
|High-wage stream||34 business days|
|Low-wage stream||37 business days|
The processing times are based on the average time required to process LMIA applications across different processing centres in Canada.
However, some Labour Market Impact Assessment applications are eligible for expedited processing depending on the employment duration and the application type.
What Kinds of Applications are Eligible for Expedited Processing?
Currently, ESDC assures processing within ten days for the following categories of applications:
- High-paying jobs, i.e., the top ten percent of the wages earned by Canadians or permanent residents in the province or territory;
- Applications for Skilled Trades where the workers will be paid at least the median provincial salary for the job;
- Employment for a short duration, i.e., one hundred and twenty calendar days or less, where the worker will be paid at least the territorial or provincial hourly median wage; and
- LMIA application supporting the permanent residence application of a foreign worker under the Express Entry program.
The application will be processed within ten business days if:
- It is complete in all respects;
- ESDC does not need additional time for consultation or clarification; and
- The employer was not selected for a compliance review.
What is the Valid Period of a positive LMIA?
Once issued, positive LMIAs are valid for a limited period. Since April 4, 2022, a positive LMIA can support a TFW’s work permit for up to eighteen months after its issuance.
ESDC can issue an LMIA that expires in less than eighteen months, such as LMIA for a short employment period related to an emergency or warranty work.
A positive LMIA has an expiry date and a duration. The LMIA expiry date is the date before which a temporary foreign worker must apply for a work permit. The TFW with a valid work permit can commence their employment even after the expiry date mentioned in the LMIA decision letter. However, they cannot continue working beyond the duration of the LMIA.
The duration of LMIA is the recommended length of time for which a work permit could be issued to a temporary foreign worker without negatively impacting the Canadian labour market.
The TFW program has implemented special measures to support employers and workers affected by COVID-19. The employers submitting an LMIA application for a low-wage position can request an employment duration of up to two years. In contrast, employers submitting one for a high-wage position may request an employment duration of up to three years.
The following actions must be taken before the Labour Market Impact Assessment expiry date:
- The employer notifies the temporary foreign worker that the LMIA was approved;
- The employer sends the positive LMIA letter to the TFW;
- The TFW applies for a work permit at IRCC; and
- The employer who filed an unnamed LMIA must try to find and recruit Canadians and permanent residents until they select a TFW.
As of April 4, 2022, employers may also apply for an extension of their LMIA. The extension can be valid for up to 18 months if:
- The previously issued positive LMIA’s validity period is 6 or 9 months; and
- The earlier positive LMIA is valid on the day Service Canada receives the extension request.
However, the positive LMIAs issued under the Seasonal Agricultural Worker Program for the 2022 season will be valid until December 15, 2022.
The LMIA is the employer’s responsibility. In most cases, the potential employee needs a positive LMIA to support their Work Permit application. The employer must be mindful of the time taken at different stages of the LMIA application process so they don’t miss a deadline.
The LMIA application process is time sensitive. The employer’s failure to adhere to the statutory deadlines can lead to the expiry of a positive LMIA. The employer might have to start the whole process again on the expiration of a positive LMIA. In addition, the rejection of an application can impact subsequent applications. For this reason, an employer must ensure they file a complete application at the first instance.
Many companies have a legal department headed by a chief legal officer (CLO) or a general counsel helping them deal with legal and regulatory compliance. The CLO supervises the company’s in-house legal team and reports to its chief executive officer. They advise the company’s board of directors and senior management regarding the changes in immigration and employment law.
The CLO provides the company with comprehensive legal services related to the LMIA process, such as ensuring compliance with the LMIA requirements, hiring TFW, drafting and reviewing the TFW’s employment contract and much more. The CLO ensures the company does not face legal issues while hiring TFWs.
If your organization does not have a CLO or general counsel, you should seek legal counsel before making an LMIA application. An experienced employment lawyer can assist you with the LMIA process. They will ensure your application is in order and all the documents are filed within the time to give you the best shot at success.
If you are an employer with questions about the Labour Market Impact Assessment application process, our team of qualified employment lawyers can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected], and we will be happy to assist.
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