Further to the myriad of changes that have affected Canada's Temporary Worker Program in the last few years, it appears that we still haven't seen the end. This change impacts LMIA applications.
Effective April 30, a new method of identifying employer requirements to recruit foreign workers will be implemented. This change was contemplated previously (with the June 2014 amendments), but it is only set to come into force now.
Until now, under the post-June 2014 scheme, employers seeking to hire a foreign worker, would need to consider whether the appropriate salary for this occupation was above or below the provincial median wage, and whether the occupation was high skill or low skill (pursuant to the appropriate NOC designation. NOC 0, A, B = high skill; NOC C, D = low skill).
[Please recognize the distinction between the provincial median wage, and the Job Bank-based median wage relating to NOC specific occupations, for the purposes of analysis. Each NOC occupation will have a median wage on the Job Bank which takes into account location and other factors. This is different than the provincial median, which is simply the median wage as taken from across all jobs in the province.]
In most cases, high skill positions (which require an LMIA transition plan) would be above the median provincial wage, and low skill positions (which have a cap on the number of positions that can be filled), would be under the median provincial wage. It is possible, however, that there could be a low skill occupation (i.e. NOC C or D) whose Job Bank-based median wage pays above the provincial median wage, and therefore would be considered 'high wage', and subject to a transition plan. [In theory, the corollary could also be true (high skill wage which paid below the provincial median), but unlikely.]
To clarify a bit further, if the Job Bank says that Occupation A, which is a NOC C level occupation, requires a median wage of $X, but it so happens that $X is actually higher than the listed provincial median wage, that job will be caught as a high wage occupation, and would therefore be subject to a transition plan.
Under the new scheme, this will be simplified. The test will simply be whether the wages required for that occupation pursuant to Job Bank guidelines are above or below the provincial median wage. If above, then they are in the 'high-wage' stream and if below, they are in the 'low-wage' stream. It won't matter what the NOC code of the occupation is. If it requires a median Job Bank wage higher than the provincial median, it is high-wage (requiring a transition plan and all other high-wage considerations), and if it requires a median Job Bank wage below the provincial median, it is low-wage (subject to the cap and other low-wage considerations).
For low-wage occupations, employers are also required to include return airfare, provide a contract with prescribed obligations, and ensure affordable housing is available. The government will also update its unemployment surveys which impact low wage positions where unemployment is 6% or greater, in particular sectors. [Information available at http://www.esdc.gc.ca/eng/jobs/foreign_workers/reform/tables.shtml#h2.5].
Though the actual situation types that may be affected by this change may be limited, it is important to incorporate the legal consideration for all applications, lest an error occur.
A few further points:
- Employment and Social Development Canada (ESDC) and Service Canada, the administrators of the program, use the 2006 National Occupational Classification (NOC) requirements for the job equivalency evaluation (not the newer 2011 NOC). [This is not a new issue, but it is important to keep in mind.]
- Yearly salaries are calculated based on the presumption of a 40 hour work week (times 52 weeks in a year)
- New forms will be introduced on April 30 impacting both high
and low wage positions. Whereas there were separate forms before,
both types will now be completed on the same form, and post April
30, all applications must use the new
- LMIAs for the purposes of supporting an Express Entry permanent residence application will also have new/different forms.
- LMIAs in Quebec will be subject to the same requirements as all other provinces (except for the list of 42 recruitment-exempt occupations, for which employers will retain some flexibility).
- LMIAs for highest-demand occupations (skilled trades), highest-paid occupations (top 10 percent), or short-duration work periods (120 day or less) will now be provided within a 10-business-day service standard.
Further information and the current provincial median wage information can be found at http://www.esdc.gc.ca/eng/jobs/foreign_workers/reform/highlights.shtml.
What you should do:
As an employer, ensure strict adherence to the requirements, and meet all salary or other guidelines prescribed. Ensure that all necessary information is substantiated carefully before filing an application, and that the correct form is used. Review salary requirements before recruiting for and/or launching an LMIA application, to ensure that you can accept the characterization of the occupation in question as high or low wage, and the consequences that flow therefrom.
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.