Background
Canada’s immigration system allows students in Canada to work after their studies are complete (subject to certain qualifications). Though not our direct topic for today, this program is commonly known as the “Post-Graduate Work Permit” (PGWP) system, and is the precursor to the discussion below.
Canada has to-date also provided people completing their work term pursuant to their PGWP (that is, people who have completed their studies AND completed their allotted time under their PGWP), a further benefit. The benefit was that if the worker wanted to work in Canada beyond their PGWP, their employer could seek a Labour Market Impact Assessment (LMIA – previously a Labour Market Opinion) without the need for recruitment, as otherwise required for an LMIA. [Though not an official term, people in this situation are sometimes referred to as POST Post-Graduate Workers.] Recruitment can be a lengthy and onerous task, the results of which can greatly impact an LMIA application.
For employers, this was an important vehicle to training post-graduate students and having them grow within their companies, rather than have to start all over again every few years. For employees, this was an important way for them to continue to work in Canada, perhaps leading up to permanent residence.
What Has Changed
Recently, Employment and Social Development Canada (ESDC – Canada’s ‘Labour Department’) mandated that employers seeking an LMIA for the hiring of Post Post-Graduate Workers, would no longer benefit from the recruitment exemption. This means that the hiring or rehiring of a Post Post-Graduate Worker must be conducted in the same way as required for any position to be filled in Canada. That is, the employer must recruit for 4 weeks, show that it could not find a qualified worker in Canada, and otherwise start the process from scratch – as if the Post-Graduate Worker was never there.
What is the Impact of the Changes:
As noted, the ability to easily secure an LMIA to (re)hire a Post Post-Graduate Worker was an important way that employers could take skilled graduates of Canadian learning institutions, have them work and be trained pursuant to a PGWP, and then have them grow with their company. This was a win-win whereby the employee gained experience, and the employer gained the ability to seek qualified workers and have them develop in their companies, rather than have to restart their searches every few years.
Employers and employees must now recognize the need to access the LMIA system in a manner no different than any LMIA-requiring job. Given notably that this means the need for recruitment and a longer LMIA application process, employers should start their processes early, to ensure that the employee can continue to work seamlessly, moving from Post-Graduate Work Permit to POST Post-graduate Work Permit. Indeed, employers must recognize that they may not be able to continue to employ the foreign graduate/worker in question, if other qualified candidates are found – less-experienced though they may be.
Actions to Take:
Employers need to ensure that they recognize the new system in place and take action to carry out an LMIA application in a timely manner, long before the expiration of a Post-Graduate Worker’s current PGWP (perhaps 6 months in advance). Employers must also be able to justify why they should be allowed to retain the employee in question, rather than another qualified candidate.
Given the impact of the pronouncements, it is strongly suggested that employers affected consider their options forthwith.
The information in this article is for general purposes only, and not intended as legal advice for any particular situation.