Permanent Resident (PR) status has become increasingly difficult to obtain. Many temporary foreign workers (TFWs) in Canada are no longer able to easily transition to PR status via Express Entry, as the points required are quite high. Canada's recent announcement reducing PR intake will exacerbate the difficulty.
This is especially true of TFWs holding open work permits, such as Post-Grad Work Permits (PGWPs) or International Experience Canada (IEC) working holiday work permits.
The result? Employers are facing more requests from TFW employees to extend work permit status and/or to support PR processes by obtaining Labour Market Impact Assessments (LMIAs) or by sponsoring TFWs under Provincial Nominee Programs (PNP).
This article will outline some considerations from an employer's point of view.
LMIAs, status and arranged employment points
TFWs holding an open work permit may approach employers to obtain an LMIA. TFWs coming to the end of their open work permit may need an LMIA to be able to continue to work in Canada. An LMIA may also provide arranged employment points under the Express Entry points grid, which can help some TFWs gain PR status.
Employers are under no obligation to obtain an LMIA for a TFW. But it may be in their interest to do so.
An LMIA may be the only option to extend work status. The employer may lose the TFW if an LMIA is not obtained. Employers should consider the importance of the position and the likelihood of finding a qualified Canadian or PR candidate if LMIA required recruiting is done. TFWs on PGWPs are often in junior positions and therefore the employer may not have an issue finding qualified Canadian candidates. Meeting the prevailing wage requirement may also be an issue for junior positions.
Recent changes to the low-wage and high-wage LMIA streams have made it more difficult to obtain LMIAs in some circumstances. The low-wage LMIA stream has been gutted. ESDC will refuse to process low-wage LMIAs where the job is located in a census metropolitan area (CMA) where unemployment is 6% or more, unless there is a sectoral exemption (see Canada tightens low-wage LMIA stream). As of Nov. 8, to apply for a high-wage LMIA, the wage offered must be at least 20% higher than the provincial-wide median wage for the province where the TFW will work (see Canada tightens high-wage LMIA stream).
TFWs in information technology positions may be eligible for a Global Talent Stream LMIA. No recruiting is required under that stream, but the TFW must be offered at least the prevailing wage for the NOC/occupation and location of work. Prevailing wage data is usually updated each November.
If the TFW is justifying a request for an LMIA to support transition to PR status, consider if the arranged employment points will make any difference to their PR prospects.
If an employer pursues an LMIA, the LMIA filing fee and any recruitment-related costs or fees incurred by the employer pursuing an LMIA cannot be charged to or passed on to the TFW.
Employers should not offload the LMIA application process to the TFW or to the TFW's advisor, given the sensitivity of the information involved, and given the consequences of non-compliance if the LMIA application content is not correct.
Employers applying for an LMIA should also be aware of the compliance requirements that would flow from employing a TFW under an LMIA-based work permit.
Sponsoring TFWs under Provincial Nominee Programs
Employers are also facing more requests to support Provincial Nominee applications. For some TFWs, given the difficulty of qualifying under Express Entry, their only potential pathway to PR status may be through a Provincial Nominee Program (PNP).
Most PNPs have application streams that a TFW can only use if they can demonstrate that they have a permanent job offer from an employer. For example, the Ontario Immigrant Nominee Program (OINP) has the Employer Job Offer Foreign Worker Stream.
An employer is under no obligation to sponsor a TFW or to support a PNP application. If an employer decides to do so, it will bring on some employer compliance requirements under the applicable provincial legislation or program.
If the employer participates and provides a job offer for PNP purposes, there is an obligation on the employer to advise the PNP if any change to employment occurs. A loss of employment before the TFW obtains PR status will usually end the application process.
Employers should retain control of preparing supporting documentation and should obtain legal advice. Employers must ensure that what is being provided to the PNP is accurate. TFWs may sometimes request employers to put forward a NOC or a job description that enhances their prospects of obtaining an invitation to apply for a PNP nomination, but which might not reflect the actual position the TFW holds.
Employer takeaways
- Be proactive and have a policy or develop an internal practice on whether you will support LMIA and/or PNP requests. For example, consider what level of employee, what occupations or what situations you may support.
- Centralize the intake of requests from TFWs so that the company has a consistent approach that is aligned with your human resources practices or policies. If different locations or managers are offering different types of support, that may cause internal issues.
- Do not offload the LMIA application process, or the preparation of employer materials or supporting documents, to the TFW or to the TFW's consultant. Anything the employer provides on an LMIA, a work permit or a PNP/PR application must be accurate and must meet program or category requirements. The best way to ensure this is to retain control of the drafting and to obtain legal advice.
- Be aware of any compliance obligations that you will take on through an LMIA or PNP application.
- If you currently employ TFWs, especially TFWs under PGWPs or other open work permits, review the roster of TFWs to assess what options there may be to extend work authorization or to transition to PR status. This should be done well in advance of the end date of their work permits.
- Obtain legal advice and support from an experienced corporate immigration lawyer.
Conclusion
Given Canada's initiatives to reduce temporary residents and permanent resident intake, and the difficulty to transition to PR status, employers in Canada that employ TFWs will continue to see an uptick of requests to support LMIAs or PNP applications.
By being proactive and considering the pros and cons of providing such support, employers can establish internal best practices, ensure compliance and that their human resource needs continue to be met.
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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.
