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
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
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
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
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
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.
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.
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