Labour Market Impact Assessment Review - Temporary Foreign Worker Program

When a foreign national makes an application for a work permit, and sections 204 to 208 of the Immigration and Refugee Protection Regulations (IRPR) do not apply, then subparagraph R200(1)(c)(iii) requires that before the officer can make a positive decision, they must establish that

• the foreign national has been offered employment,
• a positive determination under paragraphs 203(1)(a) to (g) has been made,
• there are no inadmissibilities or prohibitions.

Subsection R203(1) specifies the elements that must be met for an officer to make a positive determination on applications where there is no exemption from the Labour Market Impact Assessment (LMIA) requirement. This subsection also requires an assessment from Employment and Social Development Canada (ESDC) in order for the officer to make a determination.

Therefore, the LMIA is a mandatory document required by paragraph R10(1)(c) for a complete application.

When reviewing work permit applications with an associated LMIA, officers should ensure that the LMIA is valid at the time of the work permit application and that it has not been changed or suspended.

On this page

• Concurrent processing for in-Canada work permit applications
• LMIA process with ESDC
  • Paper version of LMIA approval
  • LMIA information in GCMS
• Reviewing the fields of the LMIA and applying the National Occupation Classification (NOC) employment requirements
  • LMIA Decision section
    • Applications received after the LMIA expiry date
  • Details and Job Details sections
  • Duration of employment as per the LMIA
    • LMIA duration choice
    • Passport expiry effect on duration of work
  • Work permit validity
    • Case examples
    • Validity of work permit where the duration of the LMIA is “Indeterminate/Permanent”

Concurrent processing for in-Canada work permit applications

Since an LMIA is required for a complete application under section R10, it should be included with the application at the time of submission.

Exception: For applications submitted in-Canada as per section R199, to ensure that foreign nationals do not fall out of status, IRCC will allow 60 days from the date of submission for the applicant to provide a positive LMIA, if they provide proof that

• their work permit expires in 2 weeks or less
• their prospective employer has submitted a complete application for an LMIA
  • with sufficient lead time to have the LMIA processed (i.e.: submitted LMIA application far enough in advance of the published processing times that a decision could be made)
  • no decision on the LMIA application has been made

The application will be promoted, and the processing fee will be allocated. Applications will be held by IRCC for 60 days, after which a final determination regarding the work permit will be made.

LMIA process with ESDC

ESDC assesses whether the employment of a foreign national will have a positive or neutral effect on the labour market in Canada. ESDC is assessing the effect of the specific occupation identified by the employer against the labour market, not whether the foreign national matches the occupational requirements.

The LMIA application forms and process may be found on the ESDC public site: Temporary Foreign Worker Program

The employer is required to complete sections of the LMIA application that include specifying the following in the Job Offer Details section:

• Job title of the position
• Main duties of the position offered
• How the position is necessary for the operation of business
• Expected duration of the employment and the rationale for that duration
• Language requirement (this is only an indication of whether English or French is used)
• Minimum education requirements
• Minimum experience/skills requirements
• Required occupation-related certification/licensing (i.e. forklift operator)

This information is based on what the employer requires from the position. The information may be entered into the LMIA verbatim, or ESDC may revise the employer’s description.

When the ESDC officer reviews the LMIA application, they determine the appropriate NOC code based on the information provided by the employer. If there is a mixture of main duties from different NOC codes, ESDC should notify the employer in writing that the foreign worker cannot engage in the specific duties that are not set out in the occupation for which the LMIA has been granted.

LMIA positive assessment

LMIA Confirmation portion: When ESDC approves an LMIA, they provide proof of the positive LMIA to the employer in the form of a letter. The LMIA number is stated in the top right corner of each page. The LMIA application receipt date is indicated in the first paragraph of the LMIA positive decision letter. The letter is generally signed by the approving ESDC program officer.

The Employment Details portion of the letter is a summarized version of the LMIA information.

The Employment Details portion of the positive LMIA letter provides only the following fields:

1. LMIA Stream: The Temporary Foreign Worker Program has several different LMIA streams that each have their own requirements. For example: High- and low-wage stream, Global Talent Stream, Agriculture, etc.
2. LMIA Validity Period: Applications for work permits must be submitted prior to this date.
3. Employer Information: Legal business name and business address of the employer.
4. Employer Contact(s): Employee name and contact number for the employer or their representative.
5. Job Information:
   1. NOC Code and Title – This is as chosen by ESDC based on the information in the LMIA application. It includes the NOC code and the title as stated in the NOC.
   2. Job Title – The title of the position as stated by the employer.
   3. Number of Positions – Total number of people the LMIA covers, and the total number of work permits to be issued based on the specific LMIA.
   4. Education Requirements: This should describe the specific diploma, certificate, degree or other educational requirements that the job requires.
   5. Verbal Language Requirements: This is only an indication of which official language is required for the job. The level of language requirement is not determined by ESDC.
   6. Written Language Requirements: This is only an indication of which official language is required for the job. The level of language required is not determined by ESDC.
   7. Duration of Employment: The length of time specified is how long the work permit should be valid for.
   8. Wage: Hourly wage offered to the foreign national as per the LMIA application.
   9. Location of Employment: The physical address of the employment.

Foreign Worker Names portion: After the Employment Details section, there is a list of Foreign Worker Names. This section has an important note which states: “Do not forward the FOREIGN WORKER NAMES document to the foreign worker(s). The foreign worker only requires the LMIA confirmation letter and the Employment Details document identifying the LMIA number [System file #]”

Some employers follow the instruction and others do not. This means that an IRCC officer reviewing the paper version of the LMIA (versus the fields in GCMS) may see the Foreign Worker Names portion included, but it should not be expected. IRCC officers should confirm foreign worker names in GCMS.

LMIA information in GCMS

In addition to the LMIA Confirmation Letter provided to the employer, information is entered into the ESDC LMIA system that is required to be refreshed in real time in GCMS each time an LMIA is reviewed.

The same fields from the positive LMIA Employment Details portion are in GCMS. However, the information held in GCMS has more details.

When an LMIA system file number is entered into GCMS and refreshed, the most up-to-date information is pulled from the ESDC LMIA system. There are additional fields in GCMS for:

1. Hours of work per day/week.
2. Benefits: any additional benefits such as health care, etc.
3. Duties: a complete list of all duties required for the position. These may be specified by the employer, what is stated in the Main duties list found in the NOC for the specific occupation, or a combination of both.
4. Requirements: this may be the list of requirements as specified by the employer. However, ESDC may include the requirements from the NOC for the specific occupation as well.
5. ESDC Comments: This is the field that ESDC uses to provide notes or comments directed to IRCC. Officers processing work permit applications should review any text in this field for name changes, specific expiry dates of employment duration, etc.
6. Worker(s): A list of the last name, given name, date of birth and country of residence as provided to ESDC by the employer.

Reviewing the fields of the LMIA and applying the NOC employment requirements

IRCC and CBSA assess the foreign national making the work permit application. The processing officer must be satisfied that all the requirements of section 200 of the IRPR are met. If an LMIA is required as per subparagraph R200(1)(c)(iii), the officer processing the work permit application must determine whether the applicant meets the requirements of paragraphs R203(1)(a) to (g).

A positive determination is contingent on the officer being satisfied that

• the worker named in the LMIA is the foreign national who is applying for a work permit
• the foreign national will leave Canada at the end of their authorized stay
• the job offer is genuine under subsection R200(5), including
  • A public list of employers who have been non-compliant
  • Employer name changes and corporate restructurings
• employment of the foreign national is likely to have a neutral or positive effect on the labour market in Canada, using the assessment provided by ESDC and any other relevant information
• issuance of the work permit is not inconsistent with any federal – provincial agreements
• the employer has previously met all conditions imposed on them, as there is no known adverse information in the system, on file or publicly available.

In addition, the officer processing the work permit application must be satisfied that the foreign national is not described in subsection R200(3) which prohibits them from issuing a work permit.

As part of the assessment to ensure that the foreign national is not described in paragraph R200(3)(a), the processing officer must assess whether the foreign national meets the employment requirements, including experience, education, language, training and any other elements specified in the LMIA and stated in the NOC for that specific occupation. In addition, the officer must determine whether there are any other factors that may prevent the foreign national from being able to perform the work sought.

LMIA Decision section

Officers should, at minimum, review these specific fields in the Decision section.

Decision: In order to make the determination under section R203, officers should review the ESDC assessment:

• Confirmed: positive decision on the LMIA request
• Revoked: LMIA has been revoked based on one of the public policy considerations
• Suspended: LMIA effect has been suspended. Therefore, it is as if no LMIA exists
• Refused: negative decision on the LMIA request

Valid to: The officer is required to ensure that the LMIA was valid at the time of receipt of the initial work permit application. As per subsection R203(3.1), an assessment by ESDC shall indicate the period during which the assessment is in effect for an officer to make the determination on a work permit application. This is the date by which a work permit application must be received by IRCC or CBSA.

The period is referred to as the LMIA validity or expiry date and is indicated on the paper copy of the LMIA in the “LMIA Validity Period” field.

In general, the period of validity of the LMIA to support a work permit application is 18 months.

The LMIA validity date does not affect the processing time needed by IRCC or CBSA after the work permit application is submitted with the supporting LMIA.

If an LMIA has been suspended and is subsequently “reconfirmed,” ESDC will change the Valid To date to ensure that the employer will always have sufficient cumulative time allowed validity for the foreign worker to submit their work permit application.

Applications received after the LMIA validity date

Work permit applications received after the LMIA validity date has passed should be refused, as they do not meet the requirement of section R200 for the issuance of a work permit.

Applicants initiating a work permit application at a port of entry (POE) are required to have a valid LMIA when seeking entry to Canada. If the LMIA validity date has passed, the LMIA can no longer be used to support the work permit application. In addition, the requirements of section R198 for applying at a POE would not be met.

Details and Job Details sections

NOC: The occupational code is chosen by ESDC based on the duties and employment requirements specified by the employer. Since this code is listed on the LMIA approval letter, the IRCC officer will use the same code to determine the specific employment requirements for Canada.

The NOC code provides the broad occupational category, the training, education, experience and responsibilities (TEER) skill level, the major, sub-major ,minor and unit grouping of occupations. The TEER skill level is divided into six categories – 0 to 5. The TEER category 0 is senior management, and categories 1 to 5 are based on level of education or training required with ‘1’ being occupations that require university education and 5 being ‘on the job’ training.

# of positions: This is the number of approved positions. All positions are under the same employer and NOC and should have the same employment requirements. Processing officers cannot issue more work permits than positions, and there should not be more names in the Foreign Worker Names list than stated in this field.

Any work permit requests received from applicants who are not named in the Foreign Worker Names list should be assessed as not having a positive or neutral determination by ESDC.

Duration: This is the total period of time that the employer has specified that they need the worker for. See Duration of employment as per the LMIA for more information.

Hours of work and Hours per Week fields: Normally these fields will indicate the hours of expected work per day and accumulated for the week. Officers should take note of whether the hours are full or part time.

Wages and Benefits fields: For most LMIA streams, the wage must be equal to or exceed the prevailing wage for the job in the region where it will be located. Wages are used to determine if the LMIA should be submitted in the high- or low-wage stream.

If the employer is paying a wage that is

• at or above the provincial or territorial median hourly wage, they are to submit an application in the Stream for high-wage positions
• below the provincial or territorial median hourly wage, they are to submit under the Stream for low-wage positions

Officers should review the wages as part of the genuineness assessment required by section R203 and to ensure that the foreign national is able and willing to support themselves and any other person who is dependent on them (A39).

• Does the wage per hour meet the minimum wage requirements for the province of destination?
• Is the wage sufficient for the worker to support themselves and any accompanying family members without working elsewhere?
• If the wages or alternate compensation scheme is insufficient for the cost of living, does the foreign national have sufficient savings to support themselves?
• Can the employer prove that they have sufficient funds/income to pay the wages for that period of time? [subsection R200(5) – genuineness factor]
• Is the employer providing housing/food/transportation? Would the employer be able to support these benefits in addition to the wages for all the workers they have on their payroll?

Duties: The LMIA may specify duties as provided by the employer, as listed in the NOC, or both. The NOC occupational description should be used as a guideline for what the foreign national requires in order to perform that occupation. The lead statement provides a general description of a unit group and indicates the main activities of occupations within the unit group. It also indicates the kinds of industries or establishments in which the occupations are typically found. The list of places of employment is not exhaustive, but can assist in clarifying the occupations described and in differentiating them from occupations found in other groups.

The main duties section describes the most significant duties of the occupations in the group. It may include:

• a series of statements that can be applied to all occupations in the group;
• two or more sub-sets of occupations with statements that apply to each sub-set or component; and/or
• a series of brief statements that are linked to specific occupations, that, while similar enough to be in the same group, can be described separately.

When determining if the foreign national can perform the work sought, the officer should take into account the lead statement and main duties of the occupation. Officers should consider at minimum the following:

• Do the duties require a level of proficiency in English or French? For example, a front counter attendant will require a higher level of proficiency than an unskilled labourer in landscaping.
• Do the duties require a level of physical ability? For example, will the foreign national be required to lift more than 23 kg (50 lbs.) or stand for long periods of time? Is the work performed indoors or outdoors?
• Do the duties require certain skills that the foreign national should have? For example, will the foreign national be leading a team, therefore, requiring supervisory skills or abilities? Will the foreign national be giving training to others, which would require both language proficiency and an understanding of training methods?
• Is their past work experience related to the current proposed duties? For example, the foreign national has years of experience as a chef but has accepted a position as a front counter supervisor of a fast food restaurant.

Requirements: Employment requirements are prerequisites generally needed to enter an occupation. Several types of requirements are listed:

• type and level of education, including specific subject matter if relevant, starting with the lowest possible requirement for entry into the occupation;
• specific training required, including apprenticeship, on-the-job, or internal training;
• experience in a related occupation, especially for supervisory or managerial occupations;
• licences, certificates, or affiliations; and/or
• other requirements not dependent on formal education, such as athletic abilities, artistic talent, or presentation of a portfolio.

While some occupations have very specific employment requirements, others have a wide range of acceptable requirements. The following terminology is used to indicate the level of the requirement:

• “Is required” indicates a mandatory requirement.
• “Is usually required” means that the qualification is generally expressed as required by a majority of employers, but not always mandatory.
• “May be required” describes requirements that some employers may impose but are not universal.

Qualities related to personal suitability that may have an impact on employability are not described in the classification. These factors are subjective and determined by employers and assessed during the hiring process.

Duration of employment as per the LMIA

The LMIA validity date should not be confused with the duration of employment specified in the LMIA. The duration in the LMIA is the period of time the employer has requested for the foreign worker to be available to them and to which ESDC has agreed.

This can be indicated as a number of days, months or years. Where seasonal employment or short duration employment is approved, a specific End Date may be entered into ESDC Comments on the Employment Details – LMIA view tab.

LMIA duration choice

Prior to May 4, 2013, employers seeking to hire a foreign national for a permanent full-time position would seek an Arranged Employment Opinion (AEO). There was no labour market assessment completed as part of the AEO process. Therefore, it could not be used to support a work permit application.

On May 4, 2013, the IRPR was amended to specify that all employers were required to apply for a labour market assessment regardless of whether the employment was permanent or temporary in duration.

An employer may submit a request to ESDC for an LMIA for one of the following:

• temporary duration to support only a work permit application; the LMIA processing fee is charged
• permanent duration to support an Economic class permanent residence application (for example, Federal Skilled Worker, Canadian Experience Class, etc.); no LMIA processing fee is charged
• a combination of permanent and temporary duration to support both a permanent residence and a work permit application; the LMIA processing fee is charged.

Passport expiry effect on duration of work

Section R52 requires a foreign national to hold a passport that is valid for the entire length of their stay. Processing officers should issue a work permit for the duration of work indicated in the LMIA provided that the passport is valid for the entire period.

Where the passport expires before the specified duration of work, the work permit must be issued for a shorter duration than identified in the LMIA. For example, if the LMIA work duration is 2 years but the foreign national’s passport will expire in 1 year, the officer will issue a 1-year work permit.

In cases where a shorter duration was provided due to passport expiry only, foreign nationals will be able to renew their work permits without obtaining a new LMIA if they have received a passport with longer validity. Even though the LMIA validity date has passed, the foreign national met the initial time frame for application, and his work permit can therefore be extended for the duration outlined in the initial LMIA, from the date of initial entry.

Processing officers should record the reason(s) in the GCMS Case Notes view tab or in User Remarks when a work permit is issued for a shorter duration than is indicated in the LMIA.

Effect of maintained status on duration of work for same employer

When issuing a work permit based on an approved LMIA for foreign nationals who are working under paragraph R186(u) and applying to continue working with the same employer, the officer should calculate the extension period from the expiry date of the previous work permit and not from the date of approval. This ensures that the duration of work as stated in the LMIA is respected.

For example, if the employment duration in the LMIA is 12 months and the foreign worker had been on maintained status with authority to work without a permit for 3 months before a decision was made on the work permit application, the officer should issue a work permit that is valid for 9 months from the date of the decision.

Work permit validity

When authorizing a work permit abroad, migration officers must calculate the work permit Valid To date from the date the work permit is approved and for the duration of the employment period specified in the LMIA, provided this is not limited by the validity of the passport or other statutory requirements.

Since there may be a delay in the foreign national’s arrival in Canada, the migration officer provisionally approving the work permit application should include a User Remark or a Case Note in GCMS indicating that the work permit should be issued at the POE for the duration of employment as per the Duration field in the Employment Details – LMIA view tab.

For example, the migration officer abroad should specify the following in the User Remarks “Issue XX month work permit from the date of entry.” This allows the employer in Canada to receive the full duration of time they requested in their LMIA application.

Case examples

Abroad

The applicant received an LMIA with a Valid To date of December 31, 2021, for a duration of employment of 24 months. The work permit application must be received on or before December 31, 2021. If the work permit application is received on August 1, 2021, and the migration officer makes the final decision to approve it on August 31, 2021, the final duration of the work permit is August 30, 2023 (24 months after the date of approval). Since several months have passed since the approval of the LMIA, the migration officer may enter the User Remark to request that CBSA issue the work permit for 24 months from the date of entry unless there is a specific end date in the ESDC Comments field.

At POEs

The applicant arrives at a POE on December 30, 2021, and has a passport valid for 3 years. The Border Services Officer issues the work permit from the date of entry in Canada to December 29, 2023 (the 24 months provided in the Duration field).

Validity of work permit where the duration of the LMIA is “Indeterminate/Permanent”

The employer has the choice of requesting an LMIA to support a temporary labour shortage and in these cases, the Duration field will indicate a specific timeframe. However, when the employer requests an LMIA to fill a permanent position, that will support a permanent resident application. In the Job Details section under the Employment Detail – LMIA view tab in GCMS, the Duration field will indicate “indeterminate/permanent.”

Work permits are issued to authorize a temporary period of work. They cannot be issued with an indeterminate validity date. If the foreign national meets the requirements set out in an LMIA with a permanent duration, the work permit will be issued for a maximum period of 2 years to provide the foreign national with reasonable time to submit their permanent resident application.

A new LMIA would be required if the foreign national had not submitted their application for permanent residence in that 2-year period.