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NPZ Immigration Law Blog

Thursday, September 4, 2014

Labour Market Impact Assessment (LMIA) in the Temporary Foreign Worker Program (TFWP): A Benefit or Disadvantage?

The Temporary Foreign Worker Program (TFWP) governs the hiring of foreign workers to work in Canada temporarily. Plainly stated, the objective of the TFWP is to ensure the recruitment of foreign workers as a last resort, when no Canadians are available to do the job. In order for a Canadian employer to hire a foreign worker, a Labor Market Impact Assessment (LMIA) must therefore be approved by the Government.

An approved LMIA proves that a Canadian is not available for the position at a Canadian employment site, thereby justifying the need for a foreign worker. When composing an LMIA application, some of the things that an employer must disclose is (i) the number of Canadians that applied for their available job, (ii) the number of Canadians they interviewed, and (iii) explain why those Canadians were not hired. Employers must now also attest they are aware of the rule that Canadians cannot be laid-off or have their hours reduced at a worksite that employs temporary foreign workers.

The LMIA component ensures employers in Canada are making efforts to provide available jobs to Canadians first and foremost. The Canadian government takes a fair approach by asking employers to try to hire Canadians before hiring foreign workers. However, this process does not always work well.

Firstly, it does not take into account some basic humanitarian factors. For example, an applicant wanting to reunite with their loved one in Canada, or fleeing from a war torn country, should either be LMIA exempt or have their LMIA be assessed with lower scrutiny. The government may argue that these types of applicants can apply in the family sponsorship or refugee categories. However, we feel that applicants cannot always be placed in "cookie- cutter" categories that accurately resemble their current situation.

Secondly, the LMIA is not practical for employers. A Canadian employer who finds a worker is usually eager for them to start working. While a delay of several weeks is acceptable to allow the worker to move to Canada, the process of applying for an LMIA, followed by a work permit application, can take upwards of six months at times. How is an employer supposed to carry out business successfully with such long time-lines?
The process of the LMIA is also costly and involves tedious amounts of paper work, time, and legal fees. Careful attention to the legal requirements is needed. For example, the recruitment efforts to hire a foreign worker must be recorded in detail and with precision.

The Canadian Law Group believes that there needs to be a better balance of providing jobs to Canadians and allowing the recruitment of foreign workers. Current programs make the process so difficult that it impacts business, instead of ensuring the economic growth of the country. We feel that the Canadian government should minimize its scrutiny towards Canadian employers who would like to hire foreign workers for legitimate reasons (ie. family reunification, specialized skill set, or victim of abuse/war). It is well about time for Canada to recognize that if an employer is intent on hiring a foreign worker illegally, that employer will do so outside of the immigration programs, as there are many foreign nationals already in Canada whose work permits have expired and are willing to work in Canada illegally. But for those employers seeking to recruit through the use of immigration programs, we feel that such employers are usually legitimate and that the present structure is only upsetting their goals, by creating unfair costs and delays.

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