Hire a skilled worker to support their permanent residency – Program requirements

2. Program requirements

Processing fee

Effective December 8, 2017, families or individuals seeking to hire a foreign caregiver to provide home care for individuals requiring assistance with medical needs are exempt from paying the Labour Market Impact Assessment application processing fee. Families or individuals with a gross annual income of $150,000 or less, seeking to hire a foreign caregiver to provide childcare in their home to a child under 13 years of age, also qualify for the processing fee exemption.

In addition, the processing fee does not apply to:

  • employers choosing only to support a foreign national's application for a permanent resident visa
  • TEER 0/1/2/3 positions (Training, Education, Experience and Responsibilities) of the National Occupational Classification (NOC) related to on-farm primary agriculture such as farm managers/supervisors and specialized livestock workers (specifically NOC codes 80020, 80021, 82030 and 82031)

Employers must pay $1,000 for each position requested (for example $1,000 x number of positions=total payment) to cover the cost of processing a dual intent LMIA application.

The processing fee payment (in Canadian dollars) can be made by:

  • Visa
  • MasterCard
  • American Express

There will be no refund in the event of a negative LMIA, or if the application is withdrawn or cancelled by the employer since the fee covers the assessment process and not the outcome.

Refunds will only be available if a fee was collected in error (for example, an incorrect fee amount was processed).

Employers must be aware that Employment and Social Development Canada (ESDC), has a policy that prohibits employers and third-party representatives from recovering the LMIA processing fee from foreign workers.

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.

Language of work

English and French are the only languages that can be identified as a job requirement both in LMIA applications and in job advertisements by employers. However, if another language is essential for the job, you must provide a justification on the application.

Positions with no language requirement

There may be rare cases where an offer of employment does not require any language for the foreign national.

If there is no language required for the job, you must provide more details on the application, including:

  • how the foreign national will perform job duties in an effective and safe manner without the ability to communicate in any language, and
  • what reasonable measures are in place to ensure health and safety of all persons at the place of work. To demonstrate this, you must also provide applicable and appropriate documentation with your application

Examples of reasonable measures are:

  • having translated workplace safety manuals and procedures
  • providing work place safety training in the foreign national’s identified language
  • using international safety signs that use symbols (pictures)
  • having official translators on-site
  • and/or employing other workers or supervisors who can speak with the foreign nationals in their identified language

Education, training and experience

Employers are responsible for verifying that the foreign worker has all the necessary training, qualifications and experience to perform the work in Canada.

Regulated occupations

Employers hiring a foreign worker in regulated occupations in Canada must ensure that arrangements are made with the appropriate regulatory body for the certification, registration or licensing of the foreign worker. A "regulated" occupation is one where a professional or regulatory body has the authority to set entry requirements and standards of practice that lead to a certification or registration, or licence (for example skilled trade occupations with compulsory certification).

Securing the necessary documents to practice in Canada is the employer's and the worker's responsibility. For the purpose of issuing a work permit, Immigration, Refugees and Citizenship Canada (IRCC) must be satisfied that the skilled worker is capable of performing the employment being offered to them. IRCC will check to ensure the skilled worker holds the required certification, or licensing to practice in a regulated occupation in Canada. If the applicant is not certified or licensed, IRCC will assess whether the applicant is likely to qualify for certification when in Canada, before issuing a work permit.

In assessing a job offer for the purpose of issuing a permanent residence visa, IRCC must be satisfied that the skilled workers are able to perform and are likely to accept and carry out the employment being offered to them.

Business legitimacy

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

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.

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.

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.

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; and
  • representing the employer during the application process.

Employers who wish to use the services of a third-party representative, 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; or
  • 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; or
  • 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
  • (a) 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.

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).

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