As companies gear back up to almost-normal business practices and the COVID-19 pandemic slowly winds down with the arrival of vaccines, economic growth and a renewed need for temporary foreign workers is being seen all over Canada.
There are two main programs through which employers can have access to this pool of international talent and labour: the Temporary Foreign Worker Program (TFWP), and; the International Mobility Program (IMP).
It all comes down to whether or not the particular job is one of the many exempt from a Labour Market Impact Assessment (LMIA).
That’s a document issued by Employment and Social Development Canada (ESDC) that shows there is both a need for a foreign worker to fill a job and also that no Canadian worker or permanent resident is available to do it.
Manitoba Immigration Issues 335 LAAs in New Provincial Draw
Saskatchewan Immigration Draw: Province Invites 418, Targets 78 Occupations
BC PNP Tech Pilot Draw: Province Issues 95 Immigration Invitations
Jobs that do not require a LMIA are generally those that:
- are included in an international trade accord;
- are part of an accord between the federal government and a provincial/territorial government, or;
- jobs that are deemed in the best interests of Canada.
There are two ways to determine whether a particular position falls under one of the many LMIA exemptions.
Employers can either:
- review the LMIA exemption codes and work permit exemptions, select the LMIA exemption or work permit code that seems most relevant to their hiring situation and read the detailed description to see if an exemption code applies to them, or:
- contact the International Mobility Workers Unit (IMWU) if they are hiring a temporary foreign worker who is both currently outside Canada and from a country whose nationals are visa-exempt.
Requesting An Opinions From The International Mobility Workers Unit
Any employer who is unsure of whether or not an LMIA is needed or a work permit exemption applies to their particular job offer can request an opinion from the IMWU by e-mailing: [email protected] and including the following:
- a completed Request for an Opinion on Work Permit or LMIA exemption form [IMM 5686];
- a copy of the biographic data page of the temporary foreign worker’s passport, and:
- supporting documentation such as:
- a letter explaining the details of the Canadian company and their staffing needs;
- a job offer or employment contract;
- the temporary foreign worker’s curriculum vitae;
- the temporary foreign worker’s diploma, if applicable;
- any other pertinent document according to the selected exemption code;
- the LMIA exemption or work permit exemption code that is most relevant to this hire.
The actual LMIA application process an employer will have to follow will depends on the type of program through which he or she is applying.
International Mobility Program: No LMIA Required
Under the IMP program, employers do not have to go through the LMIA process. Usually, the employer applying through the IMP goes straight to the Employer Portal and fills out an application.
Getting into the Employer Portal can be done in one of two ways. The employer can:
- sign in with a GCKey user ID, an account created with the Government of Canada that provides secure access, with a password. (Those employers who do not have a GCKey can register and get a user ID and password), or;
- sign in with the same information the employer uses for another online service recognized as a Sign-In Partner by the Government of Canada, such as an online bank account.
There is an employer compliance fee of $230 to hire a temporary foreign worker through the IMP and the offer of employment on the Employer Portal must include information about:
- the business;
- the foreign worker to be hired;
- job details, and;
- wage and benefits;
An exception that allows employers to skip the employer compliance fee is the open work permit. When the temporary foreign worker already has such a permit, there is no need to pay the fee or to submit an employment form because the open work permit already allows the worker to work for any Canadian employer.
Employers can also sometimes be exempt from the fee and the need to go through the Employer Portal because of the nature of the work done by the business.
Among those that are exempt from employer compliance fees are:
- international missions or consular posts, and;
- international organizations recognized under the Foreign Missions and International Organizations Act, including foreign governments or owners or operators of an international bridge or tunnel.
When these employers hire a temporary worker, they select “No, I am exempt from paying fees for this Offer of Employment” when prompted in the Employer Portal.
Trade and Reciprocal Employment Agreements
Programs and agreements that are exempt from the employer compliance fee include:
Non-trade international agreements, including:
- the Fulbright Program (Canada-U.S.);
- Roosevelt Campobello International Park, and;
- U.S. government personnel working in Canada on official U.S. government business.
Reciprocal employment agreements, including:
- cultural agreements, and;
- Canada-China cultural exchanges.
Work related to a research programs, such as:
- scientists and engineers participating in the Visiting Fellowships in Canadian Government Laboratories Program under the National Research Council of Canada or Natural Sciences and Engineering Research Council of Canada;
- scientists or post-doctoral fellows sponsored by Atomic Energy of Canada Ltd.;
- scientists or scholars sponsored by the National Research Council of Canada, National Resources Canada and its associated departments, such as Agriculture and Agri-Food Canada, the Canadian Food Inspection Agency, Defence Research and Development Canada, or Natural Sciences and Engineering Research Council of Canada, and;
- research chair positions, including the Canada Research Chair, the Canada Excellence Research Chair and similar research chair positions.
- charitable or religious work.
Temporary workers are also sometimes exempt from the work permit processing fee. This happens when the worker does not receive payment for the work, although they may receive a living expense stipend that must be less than the prevailing minimum wage.
After an employer submits an offer of employment through the Employer Portal, they will get an offer of employment number which must be given to the temporary worker. That person then uses that number to complete the work permit application.
The application is then reviewed and, if approved, Ottawa sends out:
- a letter of introduction and a work permit from a Canada Border Services Agency officer, if the temporary foreign worker is still eligible upon arrival in Canada, or;
- a new work permit (if they live in Canada or apply when they enter Canada).
Employer Responsibilities Continue After Hiring
The employer must ensure the temporary worker has the right entry document, either a visitor visa or an Electronic Travel Authorization (eTA) to enter Canada. These documents are issued with the work permit when coming to Canada from another country.
Depending on the type of work they will do in Canada and where they lived the previous year, temporary workers may have to undergo a medical examination during the application process.
Some countries have requirements that citizens must meet before leaving the country. They may need an exit visa or other documents related to their Canadian employment. Temporary workers should check with their governments to find out what the requirements are before they attempt to leave.
The employer’s responsibilities do not end with the hiring of the temporary foreign worker. Once that worker is hired, the employer still has to:
- see their work permit and know its expiry date;
- meet the conditions listed on the work permit, including the job location and length of time the worker can work in Canada;
- meet the details of the offer of employment, including the provision of a job in the right occupation with duties that match the National Occupation Classification (NOC) code, and that the pay and working conditions are equal or more favourable than those offered to Canadian workers;
- set up medical insurance and workers’ compensation benefits upon the temporary foreign worker’s arrival in Canada as required by the province or territory and as listed in the offer of employment;
- be active in the business that submitted the offer of employment for as long as the work permit is valid;
- meet all applicable federal, provincial and territorial employment and recruiting laws;
- ensure the workplace is free of physical, sexual, psychological and financial abuse, as well as any form of workplace retaliation for whistle-blowers;
- show up for any inspections – or designate an employee to do so – to answer questions and hand over all requested documents or information;
- be able to show that the information submitted on the offer of employment was accurate, and that the employer provided the temporary worker with the same employment contract.
During the COVID-19 global pandemic, employers must also:
- let employees follow any order made under the Quarantine Act and Emergencies Act;
- let workers comply with any provincial law or orders related to COVID-19, and;
- pay the foreign worker for any period that they are in mandatory isolation or quarantine upon entering Canada under the Quarantine Act, even if the worker is unable to perform any work duties.
Temporary Foreign Worker Program
When an employer wants to hire a temporary foreign worker and needs to go through the LMIA process, there are two main streams through which he or she may apply under the TFWP.
Those are the High Wage Stream (HWS) and the Low Wage Stream (LWS). Each comes with its own requirements.
An employer offering a wage to a temporary foreign worker that is at or above the provincial or territorial median hourly wage, must apply under the HWS.
Conversely, an employer offering a wage below the provincial or territorial median hourly wage, must apply under LWS.
HWS Processing Fee Waived For Caregivers
The processing fee for the LMIA under the HWS is usually $1,000 but is waived when someone is trying to hire a temporary foreign worker to provide home care for someone needing medical assistance. The processing fee can also be waived for anyone with a gross annual income of $150,000 or less hoping to hire a temporary foreign worker to provide childcare in their home for children under the age of 13.
That fee must be paid in Canadian dollars by the employer using:
- American Express;
- a certified cheque;
- a money order, or;
- a bank draft.
Employers can get help from third-party representatives to act on their behalf when trying to hire temporary foreign workers through the TFWP. Authorized third-party representatives include:
- a member in good standing of a Canadian provincial or territorial law society or students-at-law under their supervision, or the Chambre des notaires du Québec;
- a paralegal in the Province of Ontario’s law society;
- a member in good standing of the Immigration Consultants of Canada Regulatory Council, or;
- unpaid third-party representatives.
When an employer uses a third party to complete the LMIA, the cost of those services cannot be recovered from the temporary foreign worker.
All employers applying to the TFWP must supply documents along with LMIA application to demonstrate that their business and job offer are legitimate.
What Is A Transition Plan?
Among the documentation an employer must provide under the HWS of the program is a Transition Plan. This is a detailed description of the activities the employer agrees to undertake to recruit, train, and retain Canadians and permanent residents during the period of time the temporary foreign worker is employed to reduce the employer’s reliance on the TFWP.
This Transition Plan must be included as part of the LMIA for high-wage positions.
There are, however, exceptions to the rule to include a Transition Plan. It is not needed for:
- caregivers, including:
- private household employers (under North American Industry Classification System (NAICS) code 8141) for caregiving positions, (specifically National Occupational Classification (NOC) codes 3012, 3233, 4411 and 4412);
- health care institutions (under two-digit NAICS 62) for caregiving positions (specifically NOC 3012, 3233 and 3413);
- positions under the Seasonal Agricultural Worker Program, the Agricultural Stream and other primary agriculture occupations;
- specialized occupations that qualify for Quebec’s facilitated LMIA process (applicable only to the first request for the same job at the same work location).
- limited-duration employment where:
- the job is time-limited in nature and the employment duration may range from one day to a maximum of two years;
- there is no reasonable expectation that the employer could transition the position to a Canadian or permanent resident;
- the job will not be filled after the departure of the temporary foreign worker as the position will no longer exist, or;
- in some cases, where there is repeated use of the specific position for the industry, but each employment duration is limited.
- unique skills or traits which belong to a specific individual and are not readily available in Canada.
Canadian Citizens and Permanent Residents Must Be Sought To Fill Jobs
As part of the TFWP requirements, employers must conduct recruitment efforts to hire Canadians and permanent residents before offering a job to a temporary foreign worker.
Due to the higher unemployment rates during the COVID-19 pandemic, Ottawa upped its recruitment and advertisement requirements on June 15 last year to ensure Canadians and permanent residents continue to be considered first for available jobs.
- any ads posted before March 15, 2020 may need to be re-posted for an additional two consecutive weeks.
- employers must conduct at least three different recruitment activities, including:
- advertising on the Government of Canada’s Job Bank or submitting a written rationale and explanation for the alternative method, and;
- conducting at least two additional methods of recruitment, with at least one national in scope, that are consistent with the occupation.
Employers also have to use the Job Match service in their recruitment for positions advertised on Job Bank in the three months prior to the LMIA. That service allows employers to see anonymous profiles of registered job seekers whose skills match those of the job.
When seeking to fill a high-wage position, employers are required to invite all job seekers who rated four out of a possible five stars under the Job Match feature within the first 30 days of the posting to apply for the job.
Other acceptable methods of recruitment for a job advertisement under the TFWP include:
- general employment websites;
- online classified websites;
- specialized websites which are dedicated to specific occupational profiles;
- local, regional and national newspapers or newsletters;
- local stores, places of worship, and community resource centres;
- local, regional and provincial or territorial employment centres;
- magazines and journals;
- participation at job fairs;
- partnering with training institutions or offering internships;
- professional recruitment agencies;
- consultations with unions for available labour;
- advertising through professional associations, and;
- recruitment within the company.
Job Ads Must Be Detailed
If the two additional methods of recruitment are online, they must each have unique value and reach different audiences. The advertising for the job must be for be for a minimum of four weeks in the three months prior to the LMIA.
All job advertisements under the TFWP must include:
- the company’s operating name;
- business address;
- title of the position;
- job duties;
- terms of employment;
- language of work;
- a wage range can be used for the purposes of complying with the advertisements but the minimum wage in the range must meet prevailing wage;
- benefits package offered;
- location of work ;
- contact information, including telephone number, cell phone number, e-mail address, fax number, or mailing address, and;
- skills requirements.
Employers can determine the prevailing wage by choosing the higher of either the median wage on Job Bank or a wage that is within the wage range the employer is paying current employees hired for the same job and work location, and with the same skills and years of experience.
That can be done by going to the “compare wages” feature on Job Bank and inserting the appropriate job title or NOC code in the “Job search” field.
In certain circumstances, industry-specific wage rates have been identified and are considered as the prevailing wage rate during the assessment of the application.
These sectors have unique wage requirements:
- pharmacy students (excluding the Province of Quebec);
- pharmacy interns (excluding the Province of Quebec);
- program leaders, instructors (recreation, sport and fitness);
- camp counsellors (Ontario);
- snow sport instructors (British Columbia, Alberta, Saskatchewan and Manitoba);
- Cold Lake;
- international medical graduates in Quebec;
- fee for service physicians, and;
- the maritime sector.
Hiring a temporary foreign worker for a job in the province of Quebec requires that employers consult the wage table provided by the Ministère de l’Immigration, de la Francisation et de l’Intégration (MIFI).
Under the TFWP, the employer also has to prove that they have made an effort to recruit qualified Canadians and permanent residents by providing documents to prove they have advertised the position and undertaken those recruitment efforts.
These can include:
- a copy of the advertisement and information to support where, when and for how long the position was advertised;
- proof that the print media and websites were used to advertise targeted an audience that has the appropriate education, professional experience or skill level required for the occupation, and;
- proof of other recruitment activities.
English or French are the only languages which can be identified as job requirements in the LMIA application and job advertisement. If another language is essential for the job, the employer must provide justification for it on the application.
If there is no language required for the job, the employer must provide more details on the application, including:
- how the foreign national will perform job duties in an effective and safe manner without the ability to communicate in any language, and;
- what reasonable measures are in place to ensure the health and safety of everyone in the workplace.
Global Talent Stream
In most cases, the process to bring in a temporary foreign worker can be time-consuming and sometimes take up to six months but there are occupations for which Ottawa has fast-traced the process under the TFWP. These are the occupations that fall under the Global Talent Stream (GTS).
Through this stream, the processing of Canadian visa applications is cut down to two weeks. Every employer who is thinking of bringing in a skilled worker should check to see if the position to be filled falls under the GTS.
Proceeding under the GTS can not only help the temporary foreign worker get into Canada sooner but can also potentially help him or her later become a permanent resident – if he or she chooses to do so – under the Express Entry system. That’s because temporary foreign workers who come to Canada under the GTS are typically able to score higher on the point system used by Express Entry.
Quebec, Academics, Agricultural Workers, Caregivers
Among other aspects an employer will want to consider is whether the temporary foreign worker is coming to fill an academic, agricultural, or caregiver position – or coming for a job in Quebec.
There are special hiring criteria that have been developed by Employment and Social Development Canada (ESDC)/Service Canada and Immigration, Refugees and Citizenship Canada (IRCC) with universities, degree-granting colleges, and unions representing Canadian academics.
If a college or university wants to hire a foreign worker for an occupation where the majority of the job duties are other than teaching or research – in other words management, financial or administrative – then the regular ESDC process for hiring foreign workers applies.
But the Immigration and Refugee Protection Act (IRPA) allows universities and colleges in Canada to hire some types of foreign academics without requiring an LMIA or the need for the foreign academic to get a work permit.
Agricultural positions to be filled by temporary foreign workers also require a bit more attention. In addition to the high and low-wage streams, employers must also consider whether these workers are coming from Mexico or participating Caribbean countries for the Seasonal Agricultural Worker Program which requires that the commodity being produced be listed on the National Commodities List (NCL).
When the commodity is not listed on the NCL, the employer should be looking at the Agricultural Stream.
Families who want to hire foreign caregivers to work full-time in their homes to care for children or adults with medical needs must keep in mind that since June 18, 2019, IRCC will not issue a work permit for a foreign national for any caregiver position in Canada outside of Quebec unless that foreign national is already in Canada with a valid work or study permit.
Employers looking to hire a temporary foreign worker in Quebec should note the francophone province has its own processes. These special provisions require that all LMIA applications for hiring in Quebec be submitted simultaneously to Service Canada and MIFI and that all LMIA applications be submitted in French, except for those applications for in-home caregiver positions.
Also, effective since June 10 last year – during the Covid-19 pandemic – Quebec developed its own separate list of occupations deemed to be high priorities.
All documents employers have regarding the employment of a temporary worker must be kept for six years from the date of issuance of the work permit.
Penalties for non-compliance with the rules of the program can be as simple as a warning letter or as onerous as monetary penalties of $500 to $100,000 per violation to a maximum of $1 million per year. A business found to be in non-compliance can also be banned, either temporarily or permanently from hiring through the TFWP or the IMP, and have its name added to the public list of employers who have been non-compliant.