Hire a temporary foreign worker through the Agricultural Stream: Next steps

6. Next steps

Employment and Skills Development Canada (ESDC)/Service Canada will assess the Labour Market Impact Assessment (LMIA) application submitted by the employer to determine what impact hiring a temporary foreign worker (TFW) would have on Canada's job market. Based on the application and the documents received, the Department will issue a positive or negative LMIA.

Labour Market Impact Assessment process

All LMIA applications go through a systematic assessment process to:

  1. verify if the employer is:
  2. verify the consistency of the job offer with federal-provincial-territorial agreements
  3. assess the genuineness of the job offer. The assessment is based on whether the:
    • employer is actively engaged in the business related to the job offer
    • job offered to the TFW is consistent with the employment needs of the employer
    • employer can fulfil the terms and conditions of the job offer
    • employer and the third-party representative is compliant with the relevant federal-provincial-territorial employment and recruitment legislation
  4. assess:
    • the impact of hiring a TFW on the labour market including:
      • wages and working conditions offered
      • occupation in which the TFW will be employed
      • employer's recruitment and advertisement efforts
      • benefits to the labour market
      • consultations, if any, with the appropriate union
      • effect on the settlement of a labour dispute
    • previous job offers that an employer has made to a TFW:
      • did the employer employ a TFW in the last 2 years, prior to December 31, 2013?
        • this is to determine whether the employer provided all TFWs employed by the company with wages, working conditions and employment in an occupation that was substantially the same (STS) as those that were described in the previous offer of employment and confirmed in the LMIA letter and annexes
      • did the employer apply for and receive a positive LMIA on or after December 31, 2013 and employ a TFW in that position?
        • this is to determine whether the employer provided all TFWs employed on LMIAs received on or after December 31, 2013, with employment in the same occupation as described in the previous offer of employment (and confirmed in the LMIA letter and annexes) and with substantially the same wages and working conditions, but not less favourable than, those set out in that offer of employment (and confirmed in the LMIA letter and annexes)

ESDC/Service Canada will ensure that the employer has met all the Program Requirements. Once the assessment process is complete, the employer will be notified in writing of the final decision.

Positive LMIA

The employer will receive a letter confirming the approval of the LMIA application. This positive LMIA is valid for 6 months from the date of issuance with the exception of agriculture positions commencing in 2020. These LMIAs are valid for 6 months or until December 15, 2020, whichever is longer.

For privacy reasons, the letter will not include the names of the TFWs. However, it provides specific details about the job offer, such as the wages, working conditions and occupations as well as a system file number. The names of the workers will appear in Annex B which is intended for the employer's records only, and is not to be shared with the TFW as it is not required for the purposes of applying for a work permit.

Once the positive LMIA letter is received, it is the employer's responsibility to:

  • send a copy of this letter and the employment contract, signed by the employer, to the TFW
  • ask the TFW to apply to IRCC for a work permit. The TFW must include with the work permit application a copy of the positive LMIA letter and the employment contract signed by both the employer and the worker

Provincial variations

If the job is located in Quebec, the employer must:

  • send to the TFW a copy of the:
    • positive LMIA letter issued jointly by ESDC and the ministère de l'Immigration, de la Diversité et de l'Inclusion (MIFI)
    • Quebec Certificate of Acceptance issued by MIFI, and employment contract signed by the employer
  • ask the TFW to submit this documentation along with the work permit application to IRCC. Visit IRCC's Web site to find a Canadian Visa Office

Note:

In order to support employers and workers affected by COVID-19 the Temporary Foreign Worker Program will be extending the validity period of all Labour Market Impact Assessments (LMIA) to a period of 9 months for new LMIAs. If you currently hold a valid LMIA and wish to extend the validity period, validity period extension granted will be extended by 3 months to give employers a 9-month validity period in order to apply for a work permit.

LMIA extension requests can be made to the processing centre that initially processed the LMIA.

Changing a TFW name on a positive LMIA

The employer must send a completed Request to add or remove a Foreign National’s name form (ESDC-EMP5661) to Service Canada, either by fax or email to the processing centre that initially processed the LMIA.

Processing times vary depending on the number of names to be changed:

  • 10 names or less – request must be received at least 15 business days prior to the LMIA expiry date
  • more than 10 names – request must be received at least 20 business days prior to the LMIA expiry date

Note: If you wish to change the name of your already identified foreign worker for reasons related to COVID-19 you can now benefit from an expedited name change process. You will need to indicate that the name change request is due to hardships related to COVID-19 when you contact the processing centre that initially processed your LMIA.

Exemptions

Name changes are not performed when:

  • the application is for permanent resident or dual intent
  • the application is for the Seasonal Agricultural Worker Program (SAWP)
  • the work permit application has been submitted, or the work permit has been issued

Note:

For positions located in Quebec, the replacement of a TFW is only possible if the new worker holds a Certificat d'acceptation du Québec. For more details on the required steps, please consult the Ministère de l'Immigration, de la Francisation et de l'Intégration website.

Note:

On May 12, 2020, IRCC announced a Temporary Public Policy. The new policy allows some TFWs already in Canada to change jobs before a final decision is made on their work permit application.

Employers hiring these TFWs may receive priority processing of the requests to add or change names on approved LMIAs. To do so, employers must notify Service Canada in writing that the TFW:

  • is in Canada, and
  • wishes to benefit from IRCC’s COVID-19 Temporary Public Policy

Work permit

IRCC will then assess the TFW's work permit application. If the assessment is positive, the TFW will receive a work permit to be able to work for an employer in the Agricultural Stream, under established working conditions. A work permit cannot exceed a maximum duration of employment of 2 years.

Some countries may require that their citizens meet certain conditions if they want to work in Canada. Employers should:

  • ask the TFW to verify if additional conditions apply
  • contact the consulate of the foreign worker's country in Canada
  • visit the consulate's website

Once the TFW arrives in Canada, the employer must:

  • ensure that the worker is authorized to work and check the duration of the work permit
  • verify that the TFW's work permit issued by IRCC indicates the name of the individual hiring the worker as the authorized employer
  • keep records of the number of regular and overtime hours the TFW has worked on a weekly/monthly basis

Note:

Employers are not allowed to take away the TFW's identification documents such as passport, work permit or other identification.

Employers must apply for a new LMIA when they anticipate that their need for TFWs will continue beyond the period covered by the work permit. The new LMIA application should be sent at least 4 months prior to the expiry of the work permit to ensure ESDC/Service Canada has sufficient time to process the application and for IRCC to process the work permit extension.

Revocation of an LMIA

The revocation of an LMIA means overturning the decision based on new information, which changes the opinion from positive to negative.

An LMIA may be revoked if it has not yet expired, work permits have not been issued by IRCC, and if one or more of the following circumstances apply:

  • the employer has provided materially false or misleading information
  • new facts or information are brought forward after a positive LMIA has been issued, that would have changed the assessment of the application, resulting in a negative LMIA
  • the opinion was based on an unintentional error as to some material fact

The revocation of an LMIA is based on reliable and documented evidence that confirms that the new information or altered circumstances would have had an impact on the assessment of the factors listed under section 203 of the Immigration and Refugee Protection Regulations (IRPR).

Negative LMIA

ESDC/Service Canada will issue a negative LMIA letter if the employer does not meet all the Program Requirements. In these situations, the Department will also provide the employers with the necessary information to recover any work permit fees that were paid.

Employer compliance

ESDC/Service Canada takes the integrity of the TFWP very seriously. Employers hiring TFWs are expected to be compliant with the TFWP, by upholding the terms and conditions of employment as stated in the original job offer and set out in the positive LMIA letter and annexes.

Employers must also follow all federal/provincial/territorial employment regulations and laws, as all workers in Canada have the same labour and human rights and social protections.

In accordance with the IRPR, (Sections. 203(1)(e)), employers who have hired a TFW within the past 2 years, prior to December 31, 2013, may be subject to an employer compliance review after submitting a new LMIA application.

This review, often known as an STS "substantially the same" assessment, requires employers to demonstrate that the TFWs were provided with substantially the same:

  • wages
  • working conditions
  • occupation, as set out on the positive LMIA letter and annexes

Employers who applied for and have received a positive LMIA, on or after December 31, 2013, and employed a TFW in that position, must demonstrate they provided the TFW with:

  • employment in the same occupation as described in the previous offer of employment (and confirmed in the LMIA letter and annexes)
  • substantially the same wages and working conditions, but not less favourable than, those set out in that offer of employment (and confirmed in the LMIA letter and annexes)

More information is available in the Employer Compliance section.

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