legal counsel, LMIA

What Requirements Do Employers Need To Meet When Applying for an LMIA?

Canada operates the Temporary Foreign Workers (TFW) Program to bring in workers from abroad to fulfill its labor needs. Under the program, employers use the Labour Market Impact Assessment (LMIA) process to hire foreign workers temporarily (maximum period of two years) when they can’t find suitable candidates in Canada.

The government encourages employers to consider LMIA as a last resort. For this reason, positive LMIAs are only issued when the employer proves they cannot fulfil their labour requirements without TFWs.

LMIA applications are pretty technical, and not every employer is allowed to hire workers from abroad. Before applying for an LMIA, an employer must determine if they are eligible to hire foreign workers.

 

What are the Eligibility Conditions for the Employers Applying for LMIA?

 

Employers must satisfy certain conditions to be eligible for making an LMIA application. These are:

  1. They must have a legitimate business;
  2. The employer has had no legal compliance issues in the past; 
  3. The business should provide goods or services to the public;
  4. They can fulfill all the terms of the job offer;
  5. They have a genuine need for a foreign worker; and
  6. They must pay LMIA application fees – a $1000 processing fee.

 

Employers hiring skilled workers to support their application for permanent residence in Canada must submit proof that their business has been in operation for a minimum of one year. 

An employer who meets the above criteria may apply for LMIA. To obtain a positive LMIA, an employer must ensure their application is complete in all respects. 

An employer should also attach all the documents required by Ontario Employment Standards Act and Social Development Canada (ESDC) with their LMIA application. These are: 

  1. The LMIA Application Form;
  2. The job offer (signed by the employer and the foreign worker);
  3. Schedule D – Skilled Trades Job Offer – Employer #2 – EMP5595 (if applicable);
  4. Proof of advertisement (i.e. proof employer offered employment to eligible Canadians and Canadian Permanent Residents but could not find a suitable candidate); and
  5. Proof of business legitimacy.

 

What Are The Advertisement Requirements And Job Offer Requirements Under the LMIA Process?

To meet the advertising requirements for employers under the LMIA process, the employer should submit:

  1. A copy of the advertisement;
  2. Information showing when, where, and for how long they advertised the position;
  3. Job advertisement information mentioning the company’s operating name, business address, the title of the position, and job duties, amongst other things;
  4. Proof they advertised the job at Canada Job Bank for at least four weeks within three months prior to submitting their LMIA application;
  5. Proof they used at least two other recruitment methods targeting potential hires;
  6. Proof at least one of the three recruitment activities to seek qualified Canadians and permanent residents remains ongoing until the date of the decision on the application;
  7. Proof of advertising efforts for under-represented Canadians, such as persons with disabilities or First Nations; and
  8. The hiring manager’s notes mention reasons for rejecting Canadian citizen or permanent resident applicants.

 

After fulfilling the advertising requirements under the LMIA process, the employer can start looking for a TFW to fill the position they could not fill domestically. An employer need not wait for the decision on their LMIA application before sending a job offer letter to a foreign candidate. 

The job offer letter must include key details such as the offered wage, the number of hours per week, and a summary of the job duties. 

Employers may also apply for an unnamed LMIA if they do not have a suitable candidate before applying for LMIA. Companies with approved unnamed LMIA can appoint international workers within six months following the approval of their LMIA application. 

Further, the LMIA application process varies depending on whether the foreign worker being hired is a low-wage or high-wage employee.

 

What Are The Requirements For Hiring Foreign Workers in High Wage and Low Wage Positions?

High-wage employees have pay equal to or above the provincial median wage. In contrast, low-wage employees are those whose remuneration is below the provincial median wage. 

High-Wage Workers

Canadian employers looking to employ TFWs in high-wage positions must submit a Transition Plan with their LMIA application in most cases. A Transition Plan shows that the employer tried – but was unable – to recruit, retain, and train Canadians and Canadian permanent residents for the job.

Low-Wage Workers

Canadian employers applying for LMIA for low-wage workers do not need to submit a Transition Plan. However, the employers are subject to a 20% cap limit on the proportion of TFWs they can hire in low-wage positions at a specific work location. 

Employers hiring low-wage workers in construction, food manufacturing, wood product manufacturing, hospitals, furniture and related product manufacturing, and accommodation and food services sectors are eligible for a cap limit of 30%.

Further, an employer employing a TFW in a low-wage position must:

  1. Pay for round-trip transportation for the TFW;
  2. Ensure affordable housing is available for the TFW near the work location;
  3. Pay for the TFW’s private health insurance until the worker is eligible for provincial health coverage;
  4. Register the TFW with the provincial workplace safety board; and
  5. Provide an employment contract to the foreign worker.

Conclusion

The LMIA application process could be daunting for any employer. They must fulfil several requirements to get a TFW to Canada. An employer’s failure to comply with all the requirements can lead to the rejection of their application.

A negative LMIA response can negatively impact the chances of success in future LMIA applications. For this reason, an employer must ensure their LMIA applications are accurate and complete in all respects before filing them. 

Before starting the LMIA process, it is advisable to seek legal counsel. A legal counsel can advise you on your legal and statutory obligations and guide you through the process. 

A chief legal officer (CLO) or general counsel can help your company comply with its legal and regulatory obligations while hiring and employing TFWs. A CLO heads a company’s legal department and reports to its chief executive officer.

Companies with positive LMIAs are subject to compliance reviews. A CLO works with the in-house legal team and senior management to ensure that the company complies with its statutory obligations.

An employment lawyer has the knowledge and experience to provide a full range of legal services in the LMIA process. They can help you make an LMIA application, submit all the required documents, fulfil all the statutory requirements, and advise on post-LMIA obligations.

 

Contact us

If you are an employer who needs assistance with an LMIA application 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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