The federal government has recognized the need to increase efficiency and reduce processing times for employers seeking to hire temporary foreign workers (TFWs) in occupations that require a positive Labour Market Opinion (LMO) to be issued before a work permit will be granted.
Except in Quebec, employers that are compliant with the Temporary Foreign Worker Program now have access to the Accelerated Labour Market Opinion (A-LMO) Initiative. Effective April 25, 2012, Human Resources and Skills Development Canada (HRSDC)/Service Canada implemented the "A-LMO Initiative," an initiative intended to provide employers who meet A-LMO Initiative requirements with a mechanism to expedite access to an LMO (current target: within 10 business days).
A-LMOs are available for higher-skilled jobs, such as management, professional and technical occupations classified under the National Occupation Classification (NOC) as skill type NOC 0, A, and B. While the A-LMO relies on employer attestations in order to provide employers with more efficient and timely LMO processing by reducing the paper burden, it does not exempt the employer from the criteria assessed in the regular LMO process.
To be eligible to participate in the A-LMO Initiative, the employer must:
- have been issued at least one positive LMO in the previous two years (note: even those LMOs for NOCs C and D will satisfy this requirement);
- meet the advertising and recruiting efforts required in order to show an attempt to hire Canadian citizens and permanent residents;
- have a clean compliance record with the Temporary Foreign Worker Program (TFWP) over the last two years;
- complete all the attestations included in the A-LMO application;
- consent to participate in a post-compliance review of the A-LMO or any other positive LMOs issued in the last two years; n
- ot have been the subject of an investigation, infraction or a serious complaint; and
- not have any unresolved violations or contraventions under provincial laws governing employment and recruitment.
Employer attestations relate to advertising and recruiting efforts, including whether the employer has made reasonable efforts to hire or train Canadian citizens or permanent residents, the essential conditions of the job, working conditions, and genuineness of the job offer.
HRSDC/Service Canada will continue to provide an A-LMO based on the genuineness of the job offer, the wage offered, and whether the job is likely to fill a labour shortage. What is significant is there is now some flexibility to base the wage paid to the TFWs on what employers pay their Canadian and permanent resident employees, and, as such, a positive A-LMO may still be issued even if the wage provided is up to 15% less than the average posted wage rate for the occupation as set out on the Working in Canada website. Employers should note, however, that A-LMO applications with a wage rate that falls below the average posted on Working in Canada will be flagged for a careful post-compliance review.
Post-compliance A-LMO reviews will generally be random; however, if HRSDC/Service Canada determines that there is a risk of non-compliance because of further information it received or the application has been flagged, HRSDC/Service Canada may re-assess these applications.
While there has not yet been a directive issued with respect to the post-compliance processes and procedures generally, a post-compliance review will assess whether the employer has in fact met the terms and conditions set out in the A-LMO or LMO. Areas that will be reviewed include, but are not limited to, whether:
- the minimum recruiting and advertising efforts were performed;
- the TFW filled a labour shortage;
- the wages, working conditions and occupation provided are substantially the same as were offered to Canadian citizens and permanent residents in the same occupation and work location and were as listed in the A-LMO or LMO; and
- the employer abided by the relevant laws that regulate the employment and recruitment.
If a post-compliance review determines an employer has been non-compliant, the employer will be given an opportunity to provide justification or take corrective action, if applicable. Failure to properly satisfy an A-LMO post-compliance review may lead to the employer being ineligible to use the A-LMO Initiative, possible revocation of LMOs for which work permits have not been issued, further investigation, and greater scrutiny of any pending or subsequent LMO and/or A-LMO applications.
To avoid being found non-compliant, employers should:
- review the terms and conditions of the A-LMO or LMO letters and annexes;
- contact HRSDC/Service Canada if they are making changes to the terms and the conditions set out on the positive A-LMO or LMO;
for up to six years following a positive A-LMO or LMO, retain documentation surrounding the A-LMO or LMO application including, but not limited to:
- copies of advertising and summaries of recruiting efforts;
- payroll information and timesheets for the TFW and potentially for Canadian citizens and permanent residents;
- job descriptions, employment agreements, and any applicable collective bargaining agreements;
- copies of the TFW’s work permit; and
- proof of registration with provincial/territorial workplace safety, where applicable.
An A-LMO application may be submitted online or by paper. LMOs and A-LMOs may be applied for online using the Web Service system. HRSDC/Service Canada has now updated its Web Service so that online applications will be automatically integrated with their processing systems. Generally, Web Service is available for both high- and low-skilled occupations when applying for a regular LMO, but Web Service is only available for high-skilled occupations when applying for an A-LMO.
Employers must register to use Web Service when they are ready to complete their first online application and are required to make several attestations. Additionally, an employer that wishes to use a third-party representative must designate that representative in advance of the third party accessing the Web Service system. For more information regarding the Web Service and how to register, visit the site.
HRSDC/Service Canada continues to work towards improving Web Service efficiency and expects to advance the system by the fall of 2012 to include the ability to apply for NOC C and D occupations through the A-LMO process, as well as to allow employers to access the system to determine what stage of processing their A-LMO or LMO is in.
Current processing times for LMO applications are between 8 to 12 weeks. As such, if an employer has previously submitted an LMO application and has not yet received an opinion, the employer has the option of withdrawing the LMO application and resubmitting it as an A-LMO application, provided both applications are for the same position. However, withdrawing a current application may not be appropriate where it is an employer's first time using the A-LMO process and the LMO is not urgently required.