The following guide is for jobs that require a positive LMIA (Labour Market Impact Assessment) before applying for a Work Permit
In most cases, employers are required to apply for a Labour Market Impact Assessment (LMIA) before they can hire foreign workers (see exemptions including NAFTA and GATS). In order to obtain a positive LMIA, a Canadian employer must prove that there is no Canadian or permanent resident worker available to complete the job in question and a foreign worker is therefore required.
What is a Labour Market Impact Assessment (LMIA)?
A Labour Market Impact Assessment (LMIA) is a Canadian government assessment used to determine whether an employer needs to hire a temporary foreign worker because qualified Canadian citizens or permanent residents are not available for the position.
The LMIA system exists to make sure that hiring workers from outside Canada does not unnecessarily displace Canadian workers or negatively affect wages and working conditions. Not every job requires an LMIA because Canada has specific work-permit categories where the government has determined that an LMIA is not necessary—for example, certain workers may be exempt because their work provides broader economic, social, cultural, or other benefits to Canada.
How to Apply for an LMIA
Employers must first create an account on the Government of Canada’s Job Bank in order to access LMIA Online, the government’s official online portal for submitting LMIA applications. Applications can either be submitted by the employer or by a third-party representing the employer.
LMIA applications should show the following:
- Efforts made to recruit available Canadian citizens/permanent residents
- Wages offered for the position are consistent with the prevailing wage rate paid to Canadians/permanent residents in the same occupation in the region
- Working conditions for the occupation meets the current provincial labour market standards
- Any potential benefits that hiring a foreign worker might bring to the Canadian labour market, such as the creation of new jobs or the transfer of skills and knowledge
- Transition plans will be required for high-wage positions whereby employers must demonstrate increased efforts to hire Canadians in the long-term.
The positive LMIA is provided to the foreign worker to submit with his/her application for a work permit, which is typically issued for one year if granted.
LMIAs are overseen by Employment and Social Development Canada (ESDC) and have an associated application fee of $1,000 for each temporary foreign worker position applied for.
The LMIA process is different depending on whether the targeted employee is classified as “high-wage” or “low-wage”. Temporary foreign workers being paid under the provincial/territorial median wage are considered low-wage, while those being paid at or above are considered high-wage. Depending on whether a prospective employee is classified as high-wage or low-wage, certain specific provisions apply.
High-Wage Workers
Employers seeking to hire high-wage workers must submit transition plans along with their Labour Market Impact Assessment (LMIA) application to ensure that they are taking steps to reduce their reliance on temporary foreign workers over time. High-wage workers are those earning above the median hourly wage for a specified region.
The transition plans are designed to ensure that employers seeking foreign workers are fulfilling the purpose of the program. This entails that they are using the program as a last and limited resort to address immediate labour needs on a temporary basis when qualified Canadians are not available, ensuring that Canadians are given the first chance at available jobs.
Certain occupations in Quebec are “facilitated”, meaning that local recruitment efforts do not need to be performed by employers as part of their applications to hire temporary foreign workers for any of the facilitated occupations.
Low-Wage Workers
Employers seeking to hire low-wage workers do not need to submit transition plans with their Labour Market Impact Assessment (LMIA). They must, however, follow a different set of guidelines.
To restrict access to the Temporary Foreign Worker Program (TFWP), while ensuring that Canadians are always considered first for available jobs, the Government of Canada has introduced a cap to limit the number of low-wage temporary foreign workers that a business can employ. Furthermore, certain low-wage occupations may be refused for LMIA processing. Employers with 10 or more employees applying for a new LMIA are subject to a cap of 10 percent on the proportion of their workforce that can consist of low-wage temporary foreign workers. This cap will be phased in over 2015 and 2016 in order to provide employers who are above the 10 percent cap time to transition and adjust accordingly.
Employers offering a wage that is below the provincial/territorial median hourly wage must:
- Pay for round-trip transportation for the temporary foreign worker
- Ensure suitable and affordable housing is available
- Pay for private health insurance until workers are eligible for provincial health coverage
- Register the temporary foreign worker with the provincial/territorial workplace safety board
- Provide an employer-employee contract
Advertising Requirements
Employers must advertise all job vacancies across the Canadian job market for at least four weeks before applying for a LMIA. Towards this end, employers are required to prove that they have used at least two other recruitment methods in addition to having posted an advertisement on the Canada Job Bank. Employers must focus advertising efforts on groups of Canadians who are under-represented, such as First Nations or persons with disabilities.
English and French are the only languages that can be determined as job requirements, both for LMIAs and for job vacancy advertisements, unless the employer can prove that another language is otherwise required for the position.
How an Immigration Lawyer Can Help
The LMIA process can be complicated for both employers and temporary foreign workers. Our immigration lawyers can help employers determine which LMIA stream applies to their situation, ensure the recruitment and wage requirements are met, and prepare the application and supporting documentation. We can also assist with responding to questions from Service Canada and help employers understand their ongoing obligations after an LMIA is approved.
For foreign workers, our lawyers can review the job offer and positive LMIA, identify potential issues, and assist with preparing the work-permit application. We can also provide guidance if a worker needs to extend their status, change their employment situation, or has concerns about whether their employer is complying with the terms of the LMIA.
Contact us for more information on LMIA-based work permits or for assistance in applying for a work permit.