The Government of Canada recently announced a series of reforms to the Temporary Foreign Worker Program (TFWP). Our Ottawa immigration lawyers at Gerami Law PC are fully informed and familiar with these changes and has processed Labour Market Impact Assessment (LMIA) applications for client in accordance with these new requirements.
Employers seeking to hire a temporary foreign worker must now complete LMIA that replaces the Labour Market Opinion (LMO), required under the previous regime. This assessment is more comprehensive and rigorous than the LMO and requires the employer to provide specific data to show that a Canadian citizen is not available for the position, such as the number of Canadians who applied for the position, the number of Canadians interviewed for the position and an explanation of why the employer did not hire available Canadians.
Employment and Social Development Canada (ESDC), the government department responsible for processing LMIAs, may now refuse to process a LMIA for low-wage positions that require little education or training of applicants in economic regions where the unemployment rate is at or above 6 percent.
The fee of $1,000 CAN that is charged by the government to process a new LMIA (per position). Under the previous regime, the fee for a LMO was $275. Under the new regime, the duration of low-wage work permits is a one year term, whereas under the old regime, all LMOs were valid for a period of two years. However, farming or agricultural positions, such as those that fall within the Seasonal Agricultural Worker Program, are exempt from a LMIA fee.
For employers with 10 or more employees, no more than 10 percent of their low-wage workforce can be temporary foreign workers. This cap does not apply to caregivers who are typically employed by individuals or families to attend to the caregiving needs of elderly family members or young children. Farming or agricultural positions are also exempt from this cap.
Generally, employers seeking to hire temporary foreign workers for high-wage positions will face fewer barriers than those seeking to hire temporary foreign workers for low-wage positions. For the highest-paid positions, ESDC will actually make it easier for employers by introducing a 10-day service standard for processing LMIAs. While the LMIA fee is the same for low-wage and high-wage positions, the duration of the LMIA is two years for high-wage positions rather than the reduced duration of one year for low-wage positions. Unlike for low-wage positions, there is also no cap on the number of high-wage foreign workers an employer can hire.
However, employers seeking to hire high-wage temporary foreign workers face the additional requirement to submit a transition plan with their LMIA that explains the steps taken to reduce their reliance on access to the TFWP. This requirement aims to ensure Canadian employers engage in broad recruitment activities within Canada that involve reaching out to groups traditionally marginalized by society and under-represented in the workforce such as new immigrants, Aboriginal youth, and Canadians with disabilities.
STREAM OF LOWER SKILLED OCCUPATIONS
An employer may be allowed to hire temporary lower skilled workers, with National occupation Classification level C or D (a job that requires at most a high school diploma or one or two years on the job training).
CAP ON LOW WAGE POSITIONS
Employers who offer their temporary foreign workers a wage that is below the provincial median wage can hire only 10% of their work force from Temporary foreign workers by 2016. Currently the limit is 30% or frozen at the current level of temporary foreign employees that the employer has, it will be reduced to 20% starting July 1, 2015, and it will finally be reduced to 10% starting on July 1, 2016.
TRANSITION PLANS FOR HIGH-WAGE POSITIONS
Employers interested in hiring Temporary foreign workers paid at or above the provincial territorial median hourly wage should submit a Transition Plan to explain how these positions will be filled by locally trained, or hired Canadians or permanent residents. Employers should keep records of their attempts to fill the position with Canadian workers and in what ways they have followed their transition plan. As a part of this plan, the employer may participate in job fairs, increase the wages offered, introduce an employee referral program, offer part-time or flexible hours as an option, start offering apprenticeship/coop placements, offer paid-leave for education, or on the job training. The employer may be required by ESDC to increase the wages offered for the job to entice eligible Canadians or Permanent Residents to Apply.
The employer may only advertise positions which require English or French as a requirement for the job, unless the employer can demonstrate that another language is essential for the position, such as translators.
For lower skilled occupations, the employer must pay the roundtrip transportation costs for the foreign worker to travel from his country of origin and back, and this cost cannot be passed to the foreign worker.
For lower skilled occupations, the employer is expected to establish that either he is providing affordable housing, or that affordable housing is available to the employees in the area.
Health and Workplace Safety
The employer is obligated to ensure that his employees are at all times covered by private or provincial health insurance. If private insurance is necessary, these costs cannot be recovered from the worker.
A signed employment contract must be attached to the Labour Market Impact Assessment. A copy of the positive assessment and work contract must be submitted by the worker to the local CIC office when applying for a work permit.
Business License or Documentation
Employers must show they are actively engaged in business where the Temporary Foreign worker will be employed by providing documents such as:
- Business registration
- Provincial/territorial business license
- CRA documents (such as T2)
- Workplace safety insurance
- Other applicable provincial documentation requirements
Employers interested in LMIA must pay the foreign worker at minimum the prevailing wage for the occupation in which the employee will be employed, or a wage within the same wage range that they are paying their current employees working in the same position.
The employer must pay his or her workers for all the work done such as overtime, where required to’ the employer should ensure the safe conditions of the workplace and allow for proper break time and days off.
The duties listed on the occupation the Temporary Foreign Worker was hired for should be the only duties the employee performs.
The minimum advertisement that an employer must prove for a position that he offers to the temporary foreign worker:
1) Advertise on the national job bank or its provincial equivalent
- For a minimum of 4 weeks
- The advertisement must remain active until the date that the LMIA is issued
2) Use two or more additional forms of recruitment consistent with the normal practice for the occupation
- Employers could choose one or more recruitment method such as print media, general employment websites etc.
- The advertisement must be active for at least 4 weeks
3) The employer is also encouraged to employ from the underrepresented groups
The advertisement should include:
- The business name
- The address of the business
- Title of the position
- Job duties
- Terms of employment
- Applicable benefits package
- Location of the work
- Contact information for the advertisement
- Skills requirements, such as education and work experience
Employment Development and social Skills Canada may require any employer to conduct alternative advertisement if they deem that alternate form of advertising would likely bring qualified Canadians to apply for the job.
Employers must also maintain sufficient proof of advertisement as support that they have met all the requirements, evaluated Canadian or Permanent Resident’s resumes and interviewed individuals. These records must be kept for a minimum of 6 years.
If you would like to learn more about the Labour Market Impact Assessment or hiring Temporary Foreign Workers, you are welcome to schedule a one hour initial consultation with one of our lawyers to discuss your immigration options.