Canada: Changes To LMIA-Exempt Work Permit Process Effective Feb. 21, 2015

Immigration Canada (CIC) has announced changes to Canada's International Mobility Program (IMP).  These changes affect work permit categories that are exempt from requiring a Labour Market Impact Assessment (LMIA). The changes include new fees, a new form, and new compliance requirements. A new step in the process must be completed before a LMIA-exempt work permit application can be made.

The changes are effective as of Feb. 21, 2015. Companies and temporary foreign worker (TFW) applicants must comply with the new rules or face negative work permit decisions.

Background

In June 2014 the Canadian government announced major changes to Canada's Foreign Worker Program. Most of the immediate changes that occurred in June 2014 related to Labour Market Impact Assessments (LMIAs) issued by ESDC.  However, the government also set out a list of future changes that would occur to the IMP and to LMIA-exempt work permits. LMIA-exempt work permits include work permits issued under the intra-company transferee category, free trade agreements such as NAFTA, the post grad work permit program and International Experience Canada programs.

The new rules have the stated intention of increasing government scrutiny of LMIA-exempt work permits to the same level that has historically been the case for LMIA based work permits. The changes increase the compliance burden of employers.

The changes affect LMIA-exempt work permit applications filed on or after Feb. 21, 2015. LMIA-exempt work permit applications filed before that date are not affected. TFWs applying for work permits based on LMIAs are not be affected by these changes.

New Fees for LMIA-Exempt Work Permits

As of Feb. 21, 2015 there are two new fees, depending on whether the non-LMIA work permit being applied for is an employer specific work permit, or an open work permit.  In either case, the current $155 work permit application fee is still required.

There is a new $230 employer compliance fee levied for any employer specific non-LMIA work permit application. The fee is payable online and must be paid prior to the work permit application being made. The $230 fee is payable for each LMIA-exempt application. Therefore, it must be paid not only on a TFW's initial application, but on any subsequent renewal applications.

The new fee is intended to fund a more rigorous inspection and compliance regime. In June 2014, the government announced that eventually one in four employers utilizing TFWs would be inspected annually.

The $230 employer compliance fee will be refunded if the work permit application is denied, or if the employer withdraws the offer of employment prior to the issuance of the work permit.

For open work permits, such as spousal work permits, post-grad work permits and most International Experience Canada program work permits, instead of a $230 fee, there will be an additional $100 "privilege fee" payable when the work permit application is being made. The $100 fee will be refunded if the work permit application is denied, or if the TFW withdraws the work permit application.

New Processing Requirements for LMIA-Exempt Employer Specific Work Permits

CIC has added a new front end process which must be completed before a LMIA-exempt employer specific work permit application can be made or filed. 

As noted, there is a new $230 employer compliance fee that must be paid online prior to the work permit application being made, whether it is made to a visa office or at a port of entry.

In addition, new IRPA Regulations also require employers to provide job offer details and other relevant information electronically directly to CIC prior to the LMIA-exempt work permit application being made. This will include information on the employer, the position and the job offer. 

This is a significant new requirement. The purpose of this requirement is to ensure that CIC has information directly from the employer about the position. This information can then be used on future inspections by CIC or other government agencies to ensure that employers are compliant with the rules and requirements of the program. It is imperative that employers ensure that any information submitted to CIC is accurate and that they subsequently continue to comply with the representations that have been made to CIC.

If the new fee and the job offer information are not provided in advance, officers will refuse the LMIA-exempt, employer specific work permit application.

Additional Steps for Employers:

As of Feb. 21, 2015, here is what employers must do before a TFW may apply for a LMIA-exempt, employer specific work permit. 

  1. The $230 employer compliance fee must be paid to CIC via an online payment. This will generate a unique fee receipt number. Here is the link to the CIC website page where payment can be made: CIC online payment website.  Under "select the required services" select "Immigration"; on the following page click on the "Temporary Residence" link.  This will bring up a list of Temporary Residence application fees, which includes the "Compliance fee (employer)" of $230. Note that in order to make an online payment to CIC, you have to first create and register an account with CIC. First time users of CIC's online payment system will be directed to register, which is done at this webpage: https://eservices.cic.gc.ca/ols/register.do.
  2. A new form, the IMM 5802 "Offer of Employment" form, must be completed electronically.
  3. To complete the IMM 5802, the unique fee receipt number (obtained when the $230 compliance fee is paid) is needed as that goes into the form. 
  4. After the form is fully and accurately completed, the "submit" button on the electronic form is clicked and this will create an e-mail to CIC which will automatically attach the form. The IMM 5802 that is generated and attached is not separately signed. The employer is deemed to have agreed that the content of the form is "true, complete and accurate" when it is electronically submitted. The IMM 5802 also contains several Declarations that the employer certifies when the form is submitted. Employers must carefully review the IMM 5802 before it is submitted to ensure that the content is correct.
  5. If there is not enough room in the IMM 5802 to complete all fields, further information may need to be attached or inserted into the e-mail that will be submitted to CIC.
  6. After the IMM 5802 is submitted to CIC, a copy of it needs to be included in the work permit application that will be submitted by or on behalf of the TFW. Failure to include the completed IMM 5802 will lead to a denial of the work permit application. It may also be prudent to provide a copy of the fee receipt itself.

Note that Gowlings' immigration team can assist with these steps. Furthermore, legal counsel may submit the IMM 5802 to CIC on behalf of an employer. The employer should sign a Use of a Representative form (IMM 5476) that should be included in the e-mail that is submitted to CIC.

CIC states that the IMM 5802 form replaces the job offer letter previously required to support LMIA-exempt work permit applications. However, we believe that an employer support letter will probably still be needed on most applications to ensure that there is adequate evidence of the TFW's eligibility for the work permit category being requested.

The requirement to pay the $230 fee and submit the job offer information before the TFW applies for the work permit has no specific time frame. As long as the work permit application includes a copy of the IMM 5802 form with a valid receipt number, CIC or Canada Border Services Agency (CBSA) will accept that the "before" requirement has been met regardless of whether it was submitted long before, or minutes prior to, the work permit application. However, employers will want to ensure that these steps are taken well in advance of the actual work permit application being made.

CIC has provided instructions to officers on the new rules, available on the CIC website: CIC Instructions to Officers regarding new rules for LMIA-exempt work permit processing.

CIC has advised that in July 2015, the above noted process will change as CIC will be creating an "Employer Portal" through which employers will submit the job offer information for any TFW hires under the IMP. Until that system is in place, the IMM 5802 will need to be e-mailed to CIC.

Regulatory Amendments

This change to the process is based on new Regulatory requirements and amendments, which can be reviewed in more detail from the Canada Gazette - New IRPA Regulations for International Mobility Program. Consequently, the new requirement to pay the fee and to provide the job offer information is a statutory obligation. Presumably, this means that CIC and CBSA officers will take steps to ensure that the requirements are met in all cases, as a statutory requirement cannot be ignored or overlooked.

Conclusion

The new requirements affect LMIA-exempt work permit applications.

Employers applying for an employer specific LMIA-exempt work permit after Feb. 21, 2015 must ensure that they have systems and practices in place to pay the new $230 compliance fee and submit the IMM 5802 information in advance of the TFW applying for the work permit. The completed IMM 5802 must be included in the work permit application.

Employers must also implement best practices to ensure that the content of what is submitted to CIC is accurate and correct. While this has always been a requirement when providing information and/or documentation to CIC or CBSA when supporting a work permit application, the new regulatory and processing requirements raise the stakes in terms of employer compliance. The job offer information which employers must provide as part of the process will be used by government authorities during inspections and compliance reviews.

Employers should monitor the CIC website in case CIC provides further information or clarification regarding these new requirements. As noted above, it is expected that a new Employer Portal will eventually be introduced by CIC to help employers manage the payment of compliance fees and the provision of information relating to the job.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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