Canada provides various legal mechanisms by which a foreign worker can be hired without a Labour Market Impact Assessment (LMIA). [An LMIA is a process whereby employers must provide evidence of the inability to find a suitable Canadian for a position through recruitment, etc. It is typically a relatively long, and often uncertain process.]
LMIA exemptions include, among others, Intra-Company Transfers, Professionals under various free trade agreements, and the Francophone Mobility Program. There is one LMIA exemption though that is less ‘pigeon-holed’, and provides an officer flexibility in assessing whether an LMIA can be avoided in a particular case; that is the category of ‘Significant Benefit’, often referred to by its exemption code, C10.
Though, as noted, the category provides some flexibility, the burden to persuade an officer of the merit in waiving the need for an LMIA is high, as perhaps can be understood from the category name of ‘significant’ benefit. IRCC has now updated its guidance on considerations an officer is to have when considering a work permit under this LMIA exemption.
It should first be noted, that guidance with regard to this category indicates that considerations fall within one of three groupings: (a) economic, (b) social, or (c) cultural benefits.
(a) Economic benefits are those that would contribute to a company’s growth, expansion or continuation, and that allow an employer a competitive advantage. These can include:
- Preventing disruption of employment for Canadians
- Carrying out business transactions that would benefit the Canadian economy, or
- Providing economic stimulus in remote areas
(b) Social benefits are those that may provide significant external benefits to third parties not directly involved in a transaction. These can include:
- Addressing a health or safety threat
- Boosting local investment in heritage resources that may support tourism services, or
- Strengthening social inclusion in communities
(c) Cultural benefits are those that provide for creative artistic activity and the goods and services produced by it, and the preservation of heritage. This can include situations where the work will be of benefit because the foreign worker:
- Has been the recipient of national or international awards or patents,
- Is a member of an organization requiring excellence of its members, or
- Has made scientific or scholarly contributions in their field
However, in addition to all the above, there is also the consideration of what ‘significant’ means generally. Yet again, this category allows the over-riding of the need for an LMIA, so officers are wary to utilize it; knowing what their guidance says vis-à-vis what ‘significant’ means, is crucial.
In that regard, the guidance indicates that significant includes, but is not limited to, consideration of how the work of a foreign national will provide:
- General economic support for Canada (e.g., job creation, development in a regional or remote setting or expansion of export markets for Canadian products and services)
- Advancement of a Canadian industry (e.g., technological development, product or service innovation or opportunities for improving the skills of Canadians)
- Increased health and well-being, meaning the physical and mental health of society either pan-Canada or regionally
- Increased tolerance, knowledge or opportunities to come together with others of similar culture
Further details about the new guidelines can be found at the IRCC website, here.
‘Significant Benefit’/C10 can be an important tool in securing work permits for foreign nationals, but it is a category that requires due consideration. Hopefully, the information herein will help employers and employees understand the nature of this LMIA exemption.
The information in this article is for general purposes only, and not intended as legal advice for any particular situation.
