Follow Marina Sedai on Twitter: http://twitter.com/MarinaSedai
SERIES: BRINGING HOME YOUR LIFE
Part III: Labour Market Opinions – Permission to
Hire Foreign Workers for Your Canadian Business
This article is Part III of the Series, “Bringing Home Your Life”. Parts I and II addressed bringing foreign national family members to Canada. Part III now turns to obtaining authorization from Service Canada to hire foreign nationals for your Canadian business. This article is Part II of the Series, “Bringing Home Your Life”. Part I, “Sponsoring Your Spouse and Children” was published in the 2010 February edition of The Canadian Expat Association online magazine http://bit.ly/a9cGS1.
As a Canadian expat, you may either have or be planning a Canadian business, but discover that the current Canadian labour market cannot offer you employees with the training and skills your business needs to be a success and grow. This is particularly true if your business relies on your employees understanding unique international goods and services, specific language skills, or target market culture and connections.
LABOUR MARKET OPINION (“LMO”)
The general rule is that you must get authorization to hire a foreign worker by obtaining a positive LMO from Service Canada (which administers the Human Resources and Skills Development Canada program). A positive LMO confirms that hiring a foreign worker will have no negative effect on the Canadian labour market. LMO exemptions exist for some occupations and will be addressed in a subsequent article in this series Bringing Home Your Life.
The Decision-Maker’s Mindset
Service Canada’s first priority is to assist Canadians in finding employment, not to bring in foreign workers. Its second priority is ensuring foreign workers are treated fairly. Therefore, Service Canada expects you to prove that you cannot find a Canadian citizen or permanent resident to fill the position and to commit to the prevailing wages, hours, and working conditions for the foreign worker.
LMO Steps and Timeline
There are several steps to obtain an LMO: 1) identify the National Occupational Classification (“NOC”) for the position, 2) advertise according to Service Canada’s instructions, 3) record your evaluation of applications and interviews, 4) enter an employment contract, 5) submit prepared forms and evidence, and 6) confirm particulars in the Service Canada verification call to you. If the officer finds any deficiencies, you may have to repeat all or some of these steps.
Service Canada’s LMO processing times can vary from one week to several months; however, as of January 2010, is roughly three weeks. Your overall time budget is therefore currently about 6-8 weeks, depending how quickly you get through all the above steps.
NOC Identification. There are five NOC skill levels. The first three are skilled occupations: zero (“0”) is management; “A” is typically professions requiring a university or professional degree, “B” is typically skilled trades. There are two low-skilled levels: “C” is typically jobs requiring high school, short term courses, and/or on-the-job training, and “D” is typically jobs not requiring completed high school and offering just on-the-job training.
Beware: ensure that the job duties clearly fit within the NOC category that you put forward, and cannot be characterised as fitting into a related category that has a higher wage or for which your potential employee is not qualified.
Beware: if you select a low skilled NOC, it may be more difficult to prove you cannot find a Canadian to do the job.
Beware: if you select a low skilled NOC, your foreign national employee may have few or no options for staying in Canada long term.
Advertising. You must advertise for at least 14 days on one or more sources, depending on the skill level. For most jobs, advertising on the JobBank or provincial equivalent is necessary. The second source must make sense for the industry. Advertising, like all requirements, can change at any time.
Beware: you must identify the business name and address, the wage, and reference benefits or your advertising will be found inadequate.
Beware: you must offer a wage that that is attractive to Canadians. Service Canada will not accept the employer’s opinion or anecdotal evidence of an appropriate wage; rather, it expects you to pay the average or higher wage, usually according to its statistics, for even less experienced workers. Very few occupations have wage exceptions.
Honestly Assess Applicants. Record your reasons for rejecting an applicant on paper or after interviewing. If you can hire unqualified applicants for other positions, seriously consider doing so.
Beware: if a qualified Canadian permanent resident or citizen applies, you should hire that person. Your purpose is to address your business needs. Assisting the foreign national to get a job or immigrate to Canada is not your purpose; rather, it is only a subsequent benefit.
Employment Contract. You should consider having an employment lawyer review your draft contract, or create one for you, to ensure you are protected to the full extent under relevant legislation and case law. The immigration lawyer assisting with the LMO application will also need to analyse the employment contract from an immigration law perspective. A sound contract can spare great expense and stress if the employment relationship were to fail.
Prepare and Submit the LMO Application. You must indicate if you intend to have the foreign worker 1) transfer skills and knowledge to Canadians, 2) fill a labour shortage, or 3) directly create or retain job opportunities for other Canadians.
Beware: provide a description of training programs and job retention or creation for Canadians.
Beware: ensure any union is in agreement with you hiring a foreign worker.
Beware: licensing requirements – the foreign worker may either need to be licensed, or you may need to find a related NOC category that does not require licensing but can still accurately describe the position.
Beware: a Service Canada officer will telephone you. Expect to defend your need for a worker in this position and your inability to find a Canadian. In short, know your paper application perfectly.
Beware: your LMO application requires several additional elements if you are hiring a low- skilled worker, including but not limited to, a contract providing additional protections and benefits for the worker.
Beware: you must pay for all recruitment costs. It is illegal to charge an employee for job. An employee may pay for other costs such as movers, legal fees, ESL classes, immigration medicals; however, if your business truly needs and will profit from a foreign worker, it may be in your best interest to accept this as a cost of doing business, or at least share such costs.
CONCLUSION
Obtaining authorization to hire a foreign worker for your Canadian business is not an easy task, particularly considering the current economic downturn. Refusals are common. Service Canada officers commonly determine that you have not identified the correct NOC, adequately advertise, offer the prevailing wage, or met the addition requirements for hiring a low-skilled worker.
Therefore, it is crucial to allow adequate time for application preparation, processing, and possibly remedial application, as well as exercise great attention to detail so as to precisely comply with the unique Service Canada requirement. Be prepared to present a sound argument that your business needs someone in this position, you cannot find a Canadian to do the job, and the intended foreign worker is qualified.
Note that the foregoing is a general overview only. You should discuss your specific business needs vis-à-vis Service Canada’s ever-changing requirements with an immigration lawyer.
You are welcomed to ask questions here, and I will be pleased to provide general information. You are also welcomed to contact me directly with personal information for case-specific advice. When you do so, I will instruct you as to the documents and information required to ensure we comply with the British Columbia Law Society Rules that require me to identify clients and develop a clear solicitor-client relationship.
I look forward to your questions!
© 2010 Marina Lee Sedai. All rights reserved. This article protected by Canadian and international copyright laws. Quoting or paraphrasing this article requires complete citation. Permission originally granted to The Canadian Expat Association (www.thecanadianexpat.com) to wholly reproduce this article, and to the Canadian Chamber of Commerce of the Philippines publication Canada Links with citation to original source.