Introduction

In Canada, hiring foreign workers comes with certain administrative hurdles for employers. Most employers must obtain a labour market impact assessment (LMIA) from government authorities which aims to show that foreign workers (as opposed to Canadians) are needed for the job. Before recruiting any candidate, employers must keep in mind certain government requirements when engaging in the hiring process.

Employers must first make solid efforts to seek Canadian and permanent resident applicants. These recruitment efforts must be deployed before offering a job to a temporary foreign worker and applying for an LMIA. Employment and Social Development Canada (Service Canada), which is responsible for processing LMIA applications, has increased its scrutiny of job advertisements. Any deviation from the requirements below may result in the refusal of an LMIA application.

Minimum advertising requirements

At least three different recruitment activities must be conducted for a minimum of four consecutive weeks in the three months before submitting an LMIA application for a high-wage role.

The job opening must be advertised on the government's Job Bank and two other platforms (eg, provincial or territorial job boards in British Columbia, Saskatchewan and Quebec, general employment websites, online classified websites and local, regional and national newspapers).

Recruitment methods such as participating in job fairs, partnering with training institutions, using professional recruitment agencies, advertising through professional associations and internal recruitment are also acceptable secondary job postings. At least one of these methods must be national in scope and easily accessible by Canadian residents in different provinces and territories, and not limited to only the location of the job on offer. Postings on Job Bank must remain online until the date on which a positive or negative LMIA has been issued.

To meet Service Canada's requirements, job postings must contain:

  • the company operating name;
  • the business address;
  • the role title;
  • job duties;
  • the terms of employment (eg, project-based or permanent role);
  • the language of work;
  • wage and benefits;
  • the location of work;
  • contact information; and
  • skills requirements (eg, education and work experience).

Employers must submit proof of advertisement (eg, copies of job postings and confirmation as to where, when and for how long the role was advertised) with the LMIA application. The authorities will also require proof that the advertisements target an audience with the appropriate education, job experience and skills required for the occupation, as well as proof of other recruitment activities (eg, an invoice for job fairs or service contracts with recruitment agencies). These documents must be kept for a minimum of six years, as employers may be asked to provide them in case of a compliance audit.

The advertising requirements apply to LMIA applications for temporary foreign workers and permanent residence applications equally.

Although these general rules are set by Service Canada, certain variations should be kept in mind when preparing an LMIA application and some specific rules apply to certain professions in Quebec.

Changes to recruitment process

The latest requirements must be verified when preparing an LMIA application as Service Canada regularly issues new instructions and rules. The most recent changes came into effect on August 28 2017 and affect the way that employers must advertise their job openings and assess job applications.

In particular, all employers – irrespective of province or territory – are now required to advertise on Job Bank. Provincial job boards may be used as additional methods of recruitment. Employers must also use the job match service offered by Job Bank in order to meet Service Canada's requirements. The service identifies anonymous profiles of registered jobseekers that match the skills and requirements described in job postings, and ranks them using a system of one to five stars.

For a high-wage role, employers must invite all jobseekers rated four or more stars to apply for the role within the first 30 days of advertising.

Comment

The requirements and changes outlined above apply to 'high-wage' roles, (ie, those with wages at or above the provincial or territorial median hourly wage). Employers should keep in mind that different requirements apply for low-wage roles.

Successful LMIA applications start with good recruitment efforts – the first and most important step of the process. Employers should ensure that their job advertisements are solid in order to limit the risks of making negative decisions and wasting a considerable amount of time, effort and money.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.

For further information on this topic please contact Arlin Sahinyan at Fasken Martineau DuMoulin LLP by telephone (+1 514 397 7400) or email (asahinyan@fasken.com). The Fasken Martineau DuMoulin LLP website can be accessed at www.fasken.com.

This update was reprinted with permission from Northern Exposure, a blog written by lawyers in the labour, employment and human rights group at Fasken Martineau, and produced in conjunction with HRHero.com.