Hire a temporary foreign worker through the Agricultural Stream:  Program requirements

2. Program requirements

Processing fee

The LMIA processing fee does not apply to occupations related to primary agriculture and positions under the National Occupational Classification (NOC) codes 0821, 0822, 8252, 8255, 8431, 8432 and 8611.

Recruitment fees

There may be a variety of fees and costs incurred in the process of recruiting temporary foreign workers, including but not limited to:

  • cost of using a third-party representative
  • advertising fees
  • fees paid by a foreign national for assistance with finding or securing employment
  • fees paid by an employer for assistance or advice in the hiring of foreign nationals

As an employer, you must confirm and ensure that you or anybody recruiting on your behalf does not charge or recover any recruitment fees, directly or indirectly, from the temporary foreign workers. Failure to do so will result in a negative LMIA decision.

Transportation

Employers must always pay for the round-trip transportation costs (for example plane, train, boat, car, bus) of the temporary foreign worker (TFW) to the location of work in Canada, and back to the TFW's country of permanent residence. These costs must be paid up-front by the employer to ensure that they are not part of any negotiations related to the employment contract. This process helps protect TFWs, who may be tempted to accept alternative travel arrangements in return for a job offer.

Employers must keep records (for example invoices, receipts, copies of flight itineraries, tickets, boarding passes) of all transportation costs paid, for a minimum of 6 years. This information may be required as proof if employers re-apply for a subsequent LMIA or if they are selected for inspection.

Note: Under no circumstances, can an employer recover the transportation costs from the TFW.

Day-to-day transportation

Employers must provide to the TFWs, where required, no-cost transportation to and from the on-site/offsite housing location to the work location.

Housing

Employers must provide TFWs with adequate, suitable and affordable housing as defined by the Canadian Mortgage and Housing Corporation. The housing can be either on-farm (for example bunkhouse) or off-site (for example commercial establishment). Employers must ensure the occupancy of each accommodation location does not exceed the maximum occupancy permitted. They must also ensure that sufficient housing will be made available for all TFWs per approved accommodation from the date of arrival to the date of departure.

Employers supplying:

  • on-farm housing
    • can deduct a maximum of $30 per week (pro-rated for partial weeks) from the TFW's wage, unless applicable provincial/territorial labour standards specify a lower amount.
  • off-site housing - lower-skilled workers
    • can deduct a maximum of $30 per week (pro-rated for partial weeks) from the TFW's wage, unless applicable provincial/territorial labour standards specify a lower amount.
  • off-site housing - higher-skilled workers
    • must ensure that the rent does not cost more than 30% of the TFW's gross monthly earnings.

If the employer is the leaseholder or the owner of the dwelling, where multiple TFWs are living, the employer must determine the rent according to the market rate. The rent must be divided equally between TFWs.

Note: The TFW is not required to stay in the housing provided by the employer and may choose to leave in favour of private accommodation. However, the TFW may need to provide advance notice to the employer or the commercial establishment regarding the departure date.

Housing inspection

Employers must provide proof that the on-farm or off-site housing has been inspected by the appropriate provincial/territorial/municipal body or by an authorized private inspector with appropriate certification. If the authorized inspector or jurisdiction does not have a standard form for reporting official housing inspections, employers must ensure that Schedule F – Housing inspection report seasonal agricultural worker program and agricultural stream is used to report the results.

Effective January 1, 2018, new requirements will need to be followed to confirm that the housing provided to temporary foreign agricultural workers has been inspected, and that all conditions on the housing inspection report have been addressed prior to obtaining a decision.

These additional requirements will include that:

The housing inspection report must:

  • have all relevant sections completed;
  • indicate that the housing has been inspected within the last eight months prior to the date the LMIA application is received by Service Canada; and
  • indicate the maximum number of workers permitted per approved accommodation.

Employers in British Columbia must:

  • use the British Columbia Agriculture Council (BCAC) housing inspection form; and
  • have the housing inspection conducted by a BCAC sanctioned inspector, authorized to conduct housing inspections.

Failure to meet the requirements for the housing inspection report without justification will result in the LMIA application being considered incomplete.

Although a housing inspection report with a “pass with conditions” status will still be accepted for the purpose of processing an LMIA application, a decision will not be rendered until the employer has provided evidence that all conditions on the housing inspection report have been addressed.

Employers are responsible for any costs that may be associated to having the housing inspected. Under no circumstances can employers recover these costs from the TFW.

Important: Please note employers who are using commercial accommodations 3 stars or above are not required to submit an HIR.

Health and workplace safety

Health insurance

In applicable provinces/territories (P/Ts), you must obtain and pay for private health insurance that covers emergency medical care, for any period during which the TFW is not covered by the applicable P/T health insurance system.

The coverage the employer purchases must correspond with the TFWs’ first day of work in Canada and the costs must not be recovered from the TFWs.

During an employer inspection, an ESDC/SC inspector will look at the policy coverage to make sure that it has not been charged back to the worker, and that it covers at minimum the costs of basic emergency health care for sudden illness or injuries during the period the TFW is not covered by the P/T health insurance. Some private insurance companies offer more comprehensive plans, but ESDC will accept a basic plan so long as it ensures that the TFW will not have to pay for medical care if they become sick or have an accident while working in Canada.

To demonstrate compliance, the employer must be able to show proof of payment for suitable private health insurance for each TFW, as well as the terms of the policy coverage (for example, the details of what is covered).

Note: Under no circumstances, can an employer recover the health insurance costs from the TFW.

Workplace safety

Employers must always ensure that the TFWs they want to hire under the TFW Program are covered from the provincial/territorial workplace safety insurance provider, where required by law. In provinces/territories where the provincial/territorial legislation allows employers the flexibility to opt for a private insurance plan, employers must ensure:

  • that any private plan chosen provides the same level of compensation to that offered by a province/territory (for example must provide the same or better coverage than that offered by the province/territory)
  • that all employees on the worksite are covered by the same provider

Employers enquiring about private insurance plan equivalency should contact the provincial/territorial workplace safety authority.

The coverage purchased by the employer must correspond with the TFWs’ first day of work in Canada and the costs must not be recovered from the TFWs.

Pesticides and chemical use

Employers using pesticides or other hazardous chemicals must follow provincial/territorial rules. They must notify workers of pesticide and chemical use and provide workers with:

  • free protective equipment
  • appropriate formal and informal training
  • supervision where required by law

Employment agreement

Although a copy of employment agreement is not required at the time of LMIA submission, you must commit to providing a completed and signed employment agreement to each foreign worker on or before their first day of work with you. An employment agreement must:

  • include information for employment in the same occupation, with the same wages and working conditions as those set out in the offer of employment
  • be drafted in either English or French as preferred by the foreign worker, and
  • be signed by both the employer and the foreign worker

You can use this sample employment agreement (under development), or, if you use your own version of an employment agreement, please ensure that it meets all above requirements.

Employers must maintain comprehensive employment records that fully document adherence to the employment agreement throughout the duration of the employment.

For positions in Quebec, please visit the website of ministère de l'Immigration, de la Francisation et de l'Intégration (MIFI) (French only) for specific requirements regarding the employment contract.

Union consultation

Although it is not a mandatory requirement, if the position being filled by the foreign worker is unionized, it is recommended that employers:

  • work actively with union representatives to recruit unemployed Canadians and permanent residents
  • consult the union on its position regarding the hiring of a foreign worker for the available job
  • confirm that the conditions of the collective agreement (for example wages, working conditions) will apply to the foreign worker

Note:

  • ESDC/Service Canada may contact the union for more information
  • The position offered to the foreign worker cannot affect current or foreseeable labour disputes at the workplace, or the employment of any Canadian or permanent resident workers involved in these disputes
  • During LMIA assessment, if it is determined that hiring TFWs is likely to adversely affect the course, the outcome, or the settlement of any labour dispute, you will receive a negative LMIA decision

Business legitimacy

All employers applying to the Temporary Foreign Worker Program (TFWP) supply documents along with their Labour Market Impact Assessment application to demonstrate that their business and job offer are legitimate.

Third-party representatives

Employers do not need to use the services of a third-party representative to apply for a foreign worker. However, employers who choose to use the services of one of these individuals or organizations must pay for all of the fees associated with the service and meet all of the applicable requirements. The third-party representative also cannot demand or recover the processing fee or other costs related to recruiting from the TFW.

Representatives assist employers by providing services, such as:

  • explaining and providing advice on the TFWP
  • completing and submitting the application form and all required documents
  • communicating with ESDC/Service Canada on the employer’s behalf
  • representing the employer during the application process

Employers who wish to use the services of a third-party, paid or unpaid, must complete the appropriate section of the LMIA application form. Employers must identify their representative and not simply the firm/organization employing this person.

Paid third-party representatives

Individuals representing or assisting employers in exchange for compensation (for example money, goods or services) must be authorized under section  91 of the Immigration and Refugee Protection Act (IRPA), which means they have to be a member in good standing with:

  • a Canadian provincial/territorial law society, or a student-at-law under its supervision
  • the Chambre des notaires du Québec
  • the Province of Ontario’s law society as a paralegal
  • the Immigration Consultants of Canada Regulatory Council (ICCRC)

Employers should visit Immigration, Refugees and Citizenship Canada (IRCC) to verify that a specific representative is authorized to represent them or provide immigration advice.

Unpaid third-party representatives

Individuals representing employers for free (for example do not collect fees or other forms of compensation) are not subject to any restrictions under the IRPA. These individuals are usually family members, non-for-profit or religious organizations that assist employers who may not be able to complete the application process on their own.

If a paid representative is not authorized under the IRPA, ESDC/Service Canada will continue to process the application, but will communicate with the employer directly. However, a copy of a signed letter stating that the employer is no longer using the services of the original representative will be required before the employer can:

  • hire another paid authorized representative
  • work with an unpaid representative

ESDC/Service Canada:

  • reserves the right to contact employers directly when further information or documentation is required
  • will not mediate a dispute between an employer and a third-party representative nor communicate complaints to a regulatory body on an employer’s behalf. Employers who wish to file a formal complaint against their representative should contact the appropriate regulatory body (for example the provincial law society, the Chambre des notaires du Québec or the ICCR). For additional information on how to file a complaint, visit IRCC

Recruiters

A recruiter or anybody recruiting for the employer is someone who:

  • finds or attempts to find an individual for employment with the employer, or
  • assists another person in finding or attempting to find an individual for employment with the employer, or
  • refers a foreign national to another person who finds or attempts to find an individual for employment with the employer

Some provinces and territories have specific requirements for recruiters and recruitment activities. It is your responsibility to ensure you comply with those requirements. As an employer, you are also responsible for the actions of anyone who recruits on your behalf.

New employers

Employers who have not employed a temporary foreign worker in the past 6 years prior to submitting a LMIA application will be subject to a review.  The employer must demonstrate that they made reasonable efforts to provide a workplace that is free of abuse and that they were not an affiliate of an employer who is ineligible for the TFW Program or in default of any amount payable in respect of an administrative monetary penalty.

A workplace that is free of abuse includes

  • (a) proactive efforts made to prevent workplace abuse
  • (b)reactive measures taken to stop abuse

An affiliate includes an employer that is controlled by another employer

  • (a) 2 employers that are under common control, or
  • (b) employers that are not operated at arm’s length.
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