Canada: LMIA Update: Further Changes To The LMIA Application Process

Employers using Canada's Temporary Foreign Worker Program (TFWP) should be aware of several changes to the LMIA regime that were introduced on April 30, 2015.

New LMIA Application Form

A new form for Labour Market Impact Assessment (LMIA) applications was introduced on April 30, 2015.

This form (the EMP5602) must be used on all LMIA applications (for both High-wage and Low-wage stream positions) filed on or after April 30, 2015. Prior to this change, there had been separate application forms for higher-skilled versus lower-skilled applications.

For the most part, the new EMP5602 contains the same questions as the prior forms. 

However, there is now a specific notice to employers set out in the form that: "Employers must immediately inform Service Canada of any changes related to the foreign worker's terms and conditions of employment as described in the positive LMIA and annex. If Service Canada accepts the employer's changes to the original LMIA, the employers' file will be updated accordingly".

The notice in the form goes on to remind employers that they may face a government inspection and that "this inspection could include a review of the employer's file and if Service Canada does not have a copy of the changes [to the foreign worker's terms and conditions of employment], the employer will be held accountable for the information that is on file."

This notice is a reminder to employers that changing the terms of employment for a foreign worker in Canada under an LMIA based work permit may lead to a finding of non-compliance (and a potential ban from being able to use the TFWP).  Employers need to have practices in place to ensure that potential changes to the TFW's employment terms are reviewed in advance and to ensure that Service Canada is advised of any changes; depending on the nature of the change, Service Canada may require the employer to apply for a new LMIA.

Employers should always check to ensure the most recent version of the form is being used.

Positions in Québec

As of April 30, employers seeking LMIAs for positions in Québec will have to deal with the reforms to the TFWP that occurred in June 2014. This includes the requirement to provide a Transition Plan in most LMIA applications for High-wage positions. However, there will still be relaxed rules regarding Transition Plans where an employer is seeking to fill one of the approved occupations listed under Québec's simplified LMIA program.

The implementation of the June 2014 reforms for positions in Québec also means that the cap rules on the number of low-wage foreign workers an employer may employ have also been introduced to Québec as of April 30.

New Method of Calculating Cap on Low-wage Positions

As of April 30, there is an new way of calculating the cap on the number of low-wage positions that an employer may fill with TFWs. It will now be based on the number of full-time and part-time positions at a specific location instead of on the total number of hours worked. This is intended to simplify the calculation. There is also a new Schedule E form that employers applying for a  Low-wage position will need to use.

New Wage Data

As previously reported in a recent Gowlings article ( ESDC updates labour data used on LMIA applications), Service Canada began utilizing 2014 labour market data as of April 30, 2015 when assessing LMIA applications. This includes data to assess whether an LMIA application is in the High-wage or Low-wage stream, and to set the wage threshold needed for a LMIA application to be in the top 10% wages category. If the wage being offered for a position is at or above the top 10% for the province where the position will be located, the LMIA application is supposed to be eligible for 10 day speed of service from ESDC.

Conclusion

Employers using LMIAs to hire TFWs need to be aware of these changes, and should avoid inadvertently relying obsolete forms or past labour market data without first checking to see if new forms or procedures have been implemented. 

Further information on the April 30, 2015 changes, click here.

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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