In light of a tough economic situation around the globe and also in Canada, our government toughened the rules for any Canadian employer who wants to bring a foreign specialist to work in Canada. The idea is to discourage them to bring a foreign worker, if Canadians are available for the position. At the same time, we recognize that Canada needs foreign specialists who can boost the economy, bring new skills and fill the labour shortage.
The reality is that today it is harder than ever to persuade Service Canada that your client, an employer, needs that foreign worker and that he or she could not find a specialist among Canadians.
Therefore, it is wise to have an immigration counsel by your side when you intend to file an application to bring a foreign professional.
The process of hiring foreign workers begins from the employer’s search for the job title for their prospective foreign employee. It is not enough to have a rough idea of whom the employer wants to bring. Let’s say, I want a manager in my department to co-ordinate staff and services. In order to be properly assessed by Service Canada and further, by the Citizenship and Immigration Canada, the employer has to look in the National Occupational Classification (NOC) coding system which can be found on both websites, Citizenship and Immigration Canada and Service Canada. Managers can be classified in different categories and levels of professions. Different categories and levels have their own specifics which in turn, influence the ability for both, employers and future foreign specialists to apply under various streams of occupations for approval of the employer by Service Canada to bring a foreign worker and approval of the foreign worker for a Canadian Work Permit.
National Occupation Classification has a detailed description of requirements and duties for each profession. Sometimes, several occupations fit for the same profession.
The employer, having a 4-digit NOC code can identify the level of the required occupation and understand is it fit for a Higher-skilled Occupation or Lower-skilled one.
Then, the employer must find what conditions and wages are appropriate for the occupation under which they intend to bring a foreigner in order to proceed with the preparation of the job advertisement in the Job Bank. The employer has to advertise the available position in their company to Canadians first, and then, if they could not find a candidate, proceed with the Labour Market Impact Assessment (LMIA) application before Service Canada for a foreign worker they intend to hire. Service Canada charges the employer for assessing their LMIA applications with a fee in the amount of $1,000 for one position (the processing fee does not apply in a case of foreign farmers).
It is a new requirement now that Canadian employers, although hiring foreigners, would be transitioning a Canadian workforce. For that, they need to submit a Transition Plan in which they agree to undertake to recruit, retain and train Canadians and to help the foreign workers that they hire to obtain a permanent residence in Canada. The requirement for a Transition Plan does not apply in a case where an employer hires a foreign specialist and pays them lower than provincial / territorial median hourly wage (average) wages. However, if low wages will be paid, the employer will be subject to a cap on the proportion of low-wage temporary foreign workers. In certain cases, Service Canada may exempt the employer from submitting a Transition Plan (if the position of a foreign worker is of a limited duration, up to 2 years or a job not one where the employer could be expected to transition to a Canadian worker).
At present time, an employer hiring a foreign worker cannot justify the position by claiming that the language other than English or French is required for the position, unless another language is necessary for the job.
List of documents (according to the requirements of Service Canada) which have to be presented to Service Canada with the LMIA:
- Proof of recruitment;
- Business registration or incorporation documents;
- Provincial/territorial/municipal business license;
- CRA documents: Schedules 100 and 125 of the T2 Corporation Income Tax Return (for corporations only – 2 most recent returns filed;
- Business contracts for goods and/or services;
- Provincial/territorial documents, such as: workplace safety and insurance (e.g. workers compensation board) clearance letter, or other appropriate documentation;
- Attestation by a lawyer, notary public or chartered accountant confirming that the business exists and the main activity of the business;
- Provincial/territorial documentation requirements:
- Alberta – Employment Agency Business Licence (Alberta’s Fair Trading Act) if applicable.
- British Columbia – Employment Agency Licence (British Columbia’s Employment Standards Act) if applicable.
- Manitoba – Certificate of Registration (Manitoba’s Worker Recruitment and Protection Act).
- Nova Scotia – Employers must, as of August 1, 2013, obtain a certificate of registration, valid for one year, from the province’s Labour Standards, if they are planning to hire a foreign worker.
Source: Citizenship and Immigration Canada and Service Canada websites