Readers will be aware that subject to various exceptions, the starting point for a work permit in Canada is typically an application by an employer for a Labour Market Impact Assessment (“LMIA”) under the Temporary Foreign Worker Program (“TFWP”). TFWP policy is set by a government agency called Employment and Social Development Canada (“ESDC”), and administered through another government agency called Service Canada (“SC”). The LMIA process requires that an employer substantiate an inability to find a suitable Canadian citizen or permanent resident for the position before bringing a foreign worker to Canada. An LMIA application requires various recruitment requirements, salary commitments, etc.
[Exceptions to the need for an LMIA include various ‘International Mobility Program’ (“IMP”) categories such as intra-company transfers, various professional categories under free trade agreements, and ‘Reciprocal Benefit’, to name a few.]However, readers should be aware that ESDC restricts the issuance of LMIA issuance in certain cases.
In some cases, ESDC indicates that there is no authority to issue LMIAs. These situations include those where an employer:
- regularly offer services in the sex industry, or
- is on the Immigration, Refugees and Citizenship (“IRCC”) ineligibility list which includes:
- employers who have been found non-compliant based on an employer compliance review
- employers who have been banned from the TFWP because non-compliance was discovered during an inspection, or
- employers who are in default of payment of an administrative monetary penalty
Further, ESDC/SC may refuse to issue LMIAs based on public policy considerations, which may include:
- considerations vis-à-vis certain positions in the accommodation and food services and retail trade sectors
- low-wage positions above the current cap for an employer (the number of foreign low-wage workers in each employer’s work force is restricted to a percentage of the overall workforce)
- in-home caregiver positions where there is a live-in requirement
- any position where an employer has had an LMIA revoked in the past 2 years, and
- most positions in the province of Alberta(unless listed as exempt)
Further details of the restrictions can be found at https://www.canada.ca/en/employment-social-development/services/foreign-workers/refusal.html#2.1-h3.2. For our purposes, we wish to focus today on the restrictions vis-à-vis Alberta.
Because of the COVID-19 pandemic, and presumably therefore heightened unemployment rates, the Province of Alberta and ESDC have agreed that LMIAs will not be issued for positions in Alberta, unless the relevant occupation is on a specific list of exempted occupations. The full exemption list is found at the web site noted above, but some of the key exemptions would include:
- Computer and Information Systems Managers
- And certain other computer related fields
- Pilots
- Certain types of physicians
- Producers/Directors/Choreographers and related occupations, and
- Farm Workers.
In addition to the specific occupational exemptions, there are a few other situations where LMIAs in Alberta may still be granted. These include:
- Occupations where the work in question is for 30 calendar days or less, and
- Requires proprietary knowledge, or
- Entails installation, inspection, or repair of equipment where the warranty requires that work be done by workers designated by the manufacturer
- Situations where the LMIA is in support of a permanent residence (“PR”) application (or ‘dual intent’ meaning that it supports a work permit and PR at the same time).
- LMIAs under the Global Talent Stream, primarily for high-tech workers (see http://www.kranclaw.com/2018/06/global-talent-stream-adds-three-new-occupations/)
- Certain In-home Caregiver positions
As such, employers seeking to bring/send foreign workers to Canada requiring an LMIA should be aware of the restrictions and consult appropriate counsel to consider the feasibility of an LMIA application in Alberta.
Please recognize that the considerations herein do not apply to IMP programs – but there may be other issues/restrictions/considerations in those cases which should be checked, given the fluidity of COVID-based regulations, and differences based on the point of origin of the foreign worker.
The information in this article is for general purposes only, and not intended as legal advice for any particular situation.