Hiring Foreign Workers
Employers hiring foreign workers must first determine if they need to apply for a Labour Market Impact Assessment (LMIA). It is a document that will show that there is a need for a foreign worker to fill the job and that no Canadian worker can do the job. Employer when applying for a LMIA will need to demonstrate that:
- efforts have been made to recruit and/or train willing and available Canadians/permanent residents;
- that the wages being offered are consistent with the prevailing wage rate paid to Canadians in the same occupation in the region;
- that the working conditions for the occupation meet the current provincial labour market standards; and
- any potential benefits that the hiring of the foreign worker may have on the Canadian labour market (e.g., creation of new jobs, transfer of skills and knowledge, etc.).
The government further has established additional requirements to determine if a job offer is “genuine”:
- Whether the employment is being made by an employer that is actively involved in the field which the job offer is being made;
- Whether the offer is consistent with the employer’s labour needs;
- Whether the employer can reasonably fulfill the terms of the job offer; and
- Whether the employer, or recruiter acting on behalf of an employer, has previously complied with provincial and federal laws regulating employment or recruiting of workers.
Temporary Foreign Workers Requiring LMIA:
The LMIA process has differentiation between “high-wage” and “low-wage” foreign workers. Temporary foreign workers whose salary is below the provincial/territorial median hourly wage are considered under the low-wage stream. Temporary foreign workers whose salary is equal to or above the median wage are considered high-wage stream.
Prevailing wages are determined by job requirements and duties of the associated job title defined in the National Occupational Classification (NOC). After employers have determined whether they are hiring a TFW for a low-wage position or a high-wage position, they must ensure that they meet all of the requirements for that stream such as meeting the prevailing wage requirement.
Foreign Workers under High-wage Stream:
The Stream for High-wage Positions allows employers to hire temporary foreign workers (TFW) for full-time positions (minimum of 30 hours of work/week) where the wage being offered is at or above the provincial/territorial median hourly wage where the job is located.
Employers under this stream must complete a ‘transition plan’ that will explain how they intend to permanently fill the job being held by the temporary foreign worker. Transition plans exist to ensure the employer intends to reduce their reliance on temporary foreign workers. However, some employers maybe exempted on the transition plan if they will hire TFWs for positions which have a limited duration of between:
- 1 and 120 days; and
- more than 120 days to a maximum of 2 years (e.g. non-recurring project-based positions).
These positions are:
- not going to exist after the TFW leaves; and
- not jobs where employers could be expected to transition the position to a Canadian or permanent resident worker.
Further, employers under this stream are required to keep more detailed records during the foreign worker’s stay in Canada.
There are certain LMIA applications that will be processed faster. Foreign workers in skilled trades, high paid workers with salaries in the top 10% of Canadian earnings, and workers coming for 120 days or less will all receive LMIA decisions in 10 business days.
Foreign Workers under Low-wage Stream:
The Stream for Low-wage Positions allows employers to hire temporary foreign workers (TFW) for full-time positions (minimum of 30 hours of work/week) where the wage being offered is below the provincial/territorial median hourly wage where the job is located.
Canadian employers hiring low-wage workers do not need to submit a transition plan when applying for a Labour Market Impact Assessment (LMIA). However, they are subject to a cap that limits the number of low-wage temporary foreign workers a given business can employ. Canadian employers with more than 10 employees will be restricted to a maximum 10% cap on low-wage temporary foreign workers.
Employers in the accommodation and food service sector as well as the retail trade sector will no longer be allowed to apply for LMIAs for jobs in 10 lower-skill occupations. This will include all regions across Canada with unemployment rate of 6% or higher.
LMIA Priority 10 Day Processing
There are certain LMIA applications that will be processed faster. This condition serves to help expedite the applications for the highest paid workers or the most specialized positions or critical employees to help them come to Canada. If the LMIA application will fall with any of the following criteria, the LMIA will qualify for 10 days expedited processing:
- Highly paid workers with wages which are in the top 10 percent of wages paid in the province or territory to which they are applying.
- Short term workers with employment is equal to or less than 120 calendar days. However, the salary must also be considered a high wage (equal to or greater than the provincial or territorial median).
- Skilled trades workers with designated positions from the list from Employment and Social Development Canada. These must also have high wage salaries.
Positions exempt from LMIA
Foreign workers who need a Work Permit, but do not require a LMIA include:
- Post-doctoral fellows;
- Research award recipients;
- Eminent individuals, for example leaders in various fields;
- Guest lecturers;
- Visiting professors;
- Citizens of the U.S. and Mexico appointed as professors under the university, college and seminary levels of the North American Free Trade Agreement (NAFTA);
- Citizens of Chile appointed as professors under the Canada Chile Free Trade Agreement (CCFTA).