Temporary Foreign Worker Program: Labour Market Impact Assessment validity and suspension, and duration of employment
When reviewing work permit applications with an associated Labour Market Impact Assessment (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.
The LMIA validity, or expiry date, is indicated on the hard copy of the LMIA, under “Assessment Expiry Date”.
In the Global Case Management System (GCMS), under the Employment Details – LMIA view tab or in the Search screen tab submenu Employment Validation, the date in the Valid To field is the assessment expiry date. This is the date by which a work permit application must be received by Citizenship and Immigration Canada (CIC) or the Canada Border Services Agency (CBSA). Border services officers will finalize applications that have already been initiated overseas even if the LMIA validity date has passed. The visa office will have ensured that the LMIA was still valid at the time of the initial application receipt.
Since officers must verify the validity date of the LMIA before processing a work permit application, concurrent processing (the processing of a work permit application that is pending receipt of a valid LMIA) cannot be permitted in most circumstances.
Exception: For in-Canada processing, the concurrent processing option will be allowed only for foreign nationals whose work permits will be expiring within two weeks and whose employers have previously submitted an application for an LMIA. The foreign national must provide CIC with proof of a valid job offer as well as proof that the employer has submitted a request to Service Canada for a new LMIA. The application will be initialized and the processing fee will be applied. Applications will be held by CIC for 60 days, after which a determination regarding the work permit will be made.
If an LMIA has been suspended and is subsequently “reconfirmed”, Employment and Social Development Canada (ESDC) will change the Valid To date to ensure that the employer will always have six months (cumulative) for the foreign worker to submit their work permit application.
In 2013, the Immigration and Refugee Protection Act (IRPA) was amended to provide the Minister of ESDC the authority to issue Ministerial Instructions (MIs) specifying when an LMIA can be revoked or suspended and when the processing of a request for an LMIA can be refused based on public policy.
Suspension of the processing of work permit applications
For consistency with ESDC’s MIs to suspend LMIAs, the Minister of CIC issued instructions under paragraph A87.3(3)(a.1), according to which officers must suspend the processing of applications for work permits made by foreign nationals under subparagraph 200(1)(c)(iii) of the Immigration and Refugee Protection Regulations where the relevant LMIA has been suspended by ESDC.
LMIAs are suspended based on the public policy considerations specified by the Minister of ESDC pursuant to subsection A30(1.43).
The MIs took effect on December 31, 2013.
Note : When an LMIA (e.g., system file number) is suspended, all of the positions listed on that LMIA are suspended.
If a work permit application has been received by CIC and no final decision has been entered before an LMIA is suspended
When CIC receives a work permit application (for a new permit or an extension) that is supported by a positive valid LMIA issued to an employer but ESDC subsequently suspends the LMIA based on their public policy considerations, the processing officer will suspend the processing of the work permit application until ESDC has reviewed the new information and either lifted the suspension or revoked the LMIA.
If, in the Employment Details – LMIA view tab (in the IMM screen tab), the Decision or ESDC Comments field shows a status of Suspended, the work permit application will be placed on hold, pending re-evaluation by ESDC, and the applicant will be informed that their application is suspended as per the MIs (see suspension notification letter). Officers should always refresh the Employment Details – LMIA view tab before making any decision to ensure they have the most up-to-date LMIA information.
Step 1: On review of the work permit application, confirm the status of the LMIA by reviewing the Decision or ESDC Comments field, including the Valid To date of the LMIA. The decision should be one of the following: Confirmed, Revoked, Suspended or Reconfirmed.
- 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
- Reconfirmed: LMIA has been suspended, and further review confirmed there is no adverse information; therefore, suspension has been lifted
Step 2: If the Decision field shows a status of Suspended or the ESDC Comments field indicates Suspended and a date later than the Decision Date, send a suspension notification letter to the applicant.
The work permit application status should be changed to On Hold to ensure that it is not processed erroneously, and a Bring Forward (BF) date corresponding to 60 days should be entered.
Step 3: After 60 days, check the status of the LMIA.
- If ESDC has completed their review, the Decision and ESDC Comments fields will show as either Reconfirmed or Revoked. The processing of the work permit application can then continue normally.
- If ESDC has not yet completed their review, the Decision or ESDC Comments field will continue to show Suspended. The On Hold status and BF should not be removed from the work permit application for another 60 days.
If a work permit application is received by CIC or the CBSA after an LMIA is suspended
As per paragraph A30(1.43)(b), the “effect” of the LMIA is suspended. This means that while under suspension, an LMIA is considered nonexistent. Therefore, a work permit application received after the relevant LMIA has been suspended by ESDC should be returned (i.e., rejected) under section R12 as incomplete.
CIC and CBSA officers should not accept work permit applications whose supporting LMIAs are suspended.
At the port of entry (POE), a foreign national makes an application verbally. There is no ability for a border services officer to “suspend” the work permit application. Therefore, when a foreign national requests a new work permit at the POE based on a suspended LMIA, the LMIA will be considered “not valid” for use as the basis for a work permit until the suspension is lifted.
The normal actions will be available to border services officers to deal with admissibility issues.
If a work permit application is authorized by CIC (POE/letter of introduction issued), but no work permit is issued at the port of entry (POE) and the LMIA is suspended
When a foreign national arrives at a POE in possession of a letter of introduction for a work permit based on an LMIA and the LMIA has subsequently been suspended, the border services officer should refuse to issue the work permit and the work permit application should be reopened and placed on hold until the LMIA is either reconfirmed or revoked.
The normal actions will be available to border services officers to deal with admissibility issues.
Applications received after the LMIA expiry date
Work permit applications received with an expired LMIA should be refused, because they do not meet the requirement of section R200 for the issuance of a work permit.
Applicants initiating a work permit application at a POE are required to have a valid LMIA when seeking entry to Canada. If the LMIA expiry date has passed, the LMIA can no longer be used to support the work permit application.
Note: In certain cases where an employer has specific timelines for a short employment opportunity, ESDC or Service Canada may issue LMIAs that expire in less than six months.
The LMIA expiry date does not affect the processing time needed by CIC or CBSA after the work permit application is submitted with the supporting LMIA.
Exception: live-in caregiver class only
Six-month LMIA expiry dates will apply except in the processing of live-in caregiver applications in Quebec. In Quebec, applicants first apply for an LMIA. Upon receipt of the LMIA and before applying for a work permit, they must apply for the Quebec Acceptance Certificate (CAQ). Due to the timelines associated with the CAQ, these LMIAs will always be valid for three months following the issuance of the CAQ, regardless of the LMIA expiry date. Service Canada will indicate the following in CIC notes in their system (ESDC Comments in GCMS): “The LMIA is valid for three months after the CAQ is issued”. Officers can refer to the date the CAQ was issued to determine if the request for a work permit was made within three months of that date.
Duration of employment as per the LMIA
The LMIA expiry date should not be confused with the LMIA duration of employment. The work duration in the LMIA is the work time frame the employer has requested and to which ESDC has agreed.
In some cases, this will be indicated as a number of months. 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
An employer can now submit a request to ESDC for an LMIA for one of the following:
- temporary duration to support only a work permit application;
- permanent duration to support a permanent residence application; or
- a combination of permanent and temporary duration to support both a permanent residence and a work permit application.
Note: At this time, CIC does not have the regulatory authority to refuse the issuance of a work permit based solely on whether the LMIA fee was paid. Officers are to process all work permit applications with a valid LMIA, regardless of the LMIA fee payment.
Passport expiry effect on duration of work
The expectation is that CIC or CBSA officers will issue a work permit for the duration of work indicated in the LMIA. However, in cases of passport expiry, a work permit may be issued for a shorter duration than identified in the LMIA. For example, if the LMIA work duration is two years but the temporary foreign worker’s passport will expire in one year, the officer will issue a one-year work permit.
In cases of passport expiry only, provided the initial LMIA and work permit application were received before the assessment expiry date, temporary foreign workers will be able to renew their existing work permits without obtaining a new LMIA. That is, while the assessment expiry date of the LMIA has passed, the temporary foreign worker met the initial time frame for application and his work permit can therefore be extended for the duration outlined in the initial LMIA, provided the passport has been renewed accordingly.
To assist officers processing the extension, CIC and CBSA officers are asked to record reasons in the GCMS Case Notes view tab when a work permit is issued for a shorter duration than is indicated in the LMIA.
Work permit validity
When authorizing a work permit abroad, visa officers must calculate the Work Permit Valid Until 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 difference of days or weeks between the visa officer approving the work permit application abroad and the foreign national appearing at the POE, the visa officer may include 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 visa officer abroad may specify the following in the Remarks “Issue XX month work permit from the date of entry”.
Note: CBSA officers will primarily rely on the remarks to determine the duration of employment upon entry in Canada.
The applicant received an LMIA with a Valid to date of December 31, 2015, for a Duration of employment of 24 months. The work permit application must be received on or before December 31, 2015. If the work permit application is received on August 1, 2015, and the visa officer makes the final decision to approve on August 31, 2015, the final duration of the work permit is August 30, 2017 (24 months after the date of approval). Since several months have passed since the approval of the LMIA, the visa officer may enter the remark to issue the work permit for 24 months from the date of entry.
At ports of entry
The applicant arrives at a port of entry on December 30, 2015, and has a passport valid for three years. The border services officer issues the work permit from the date of entry in Canada to December 29, 2017 (the 24 months provided in the Duration field).
Note: Providing the requirements are met, officers should issue work permits for a longer rather than a shorter duration. Where there is no reason to limit duration, officers should issue the work permit for the complete expected duration of the employment. It is in both the Department’s and the applicant’s best interests to minimize the number of extensions to be processed.
Duration of work permit where the duration of the LMIA is “Indeterminate/Permanent”
In the Job Details section under the Employment Detail – LMIA view tab in GCMS, the Duration field will indicate a specific duration or “indeterminate/permanent” period.
Work permits supported by a permanent duration LMIA will be issued for a maximum period of two years, provided the foreign national meets the requirements set out in the LMIA. Such work permits will not be extended, regardless of whether the permanent residence application is still in process.
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