In most circumstances, Canadian immigration law requires employers who want to hire temporary foreign workers to first apply to Service Canada for a Labour Market Opinion (LMO) before the worker is eligible for a work permit. In deciding whether to issue a positive LMO, Service Canada considers how the foreign worker would impact Canada’s labour market. It considers (amongst other things):
- whether the wages and working conditions are in keeping with norms for the occupation;
- whether the temporary foreign worker is likely to fill a labour shortage;
- the efforts made by an employer to recruit or train Canadians or permanent residents; and
- whether hiring the foreign worker will result in transferring skills or knowledge to Canadians or in creating or retaining employment for Canadians.
This article discusses a new policy change that affects the process of obtaining a positive LMO from Service Canada.
Previously, the Regional Occupations Under Pressure Initiative allowed Service Canada to speed up and prioritize applications pertaining to a long list of specified occupations.
As of January 1, 2009, this initiative was replaced by new national standards. Now all occupations require the same minimum advertisement and recruitment requirements based on the National Occupational Classification (NOC) system. These amendments are meant to standardize the minimum requirements across Canada, thereby reducing historical regional differences in processing methodology.
This policy change doesn’t alter the laws on hiring temporary foreign workers. Federal legislation has always included the requirement that employers make efforts to recruit or train Canadians or permanent residents, but the various regional branches of Service Canada that issue LMOs have applied the policy differently in the past. In certain provinces, bureaucrats might issue a positive LMO even if the employer had not advertised, as long as the employer could explain why it didn’t (for example, by showing that searching locally for workers would be fruitless).
New National Criteria
Under the new policy change, employers seeking LMOs for NOC O12 and A13 occupations are required, during the three months prior to applying for an LMO, to advertise on the national Job Bank for a minimum of fourteen days or to conduct similar recruitment activities consistent with the practice within that particular occupation.
When seeking an LMO for NOC B14 occupations, employers need to establish that they have advertised on the national Job Bank for a minimum of fourteen days during the three months prior to submitting their request for an LMO.
For NOC C15 and D16 occupations, employers must show that they have, within the past three months prior to applying for an LMO, advertised on the national Job Bank for a minimum of fourteen days and that they have conducted similar recruitment activities consistent with the practice in that occupation.
Lessons for Employers
The new national requirements may add months to the process of bringing in temporary foreign workers. This may present significant challenges for employers, particularly in cases where it is necessary to bring foreigners in quickly for specialized projects requiring immediate help. In addition, it should be noted that advertising/recruiting is now also required for an LMO to be renewed where the worker is already in Canada and has a valid work permit but requires a renewal.
There is some limited relief from this new national policy as Service Canada still maintains a narrow list of exceptions to the new requirements. The exceptions are where:
- the work entails installation, inspection or repair of equipment, and the terms of the warranty require the work to be done by skilled workers designated by the manufacturer;
- the work requires a specialist familiar with the overall operation to do the work on a regular basis and the duration of the work is limited and there is no opportunity for Canadians to be trained;
- the position is for a specific occupation in the entertainment sector where the workers often work for a limited number of days in a specific location and on very short notice (for example, boxers, bar bands and DJs, musicians, singers, film directors and first assistant directors, etc.); and
- the position is for an Academics’ occupation or facilitated processing for IT specialists.
Unless the work in question fits within one of these narrow exceptions, it is important for employers to think ahead about their need for temporary foreign workers and ensure they give themselves enough time to satisfy the new advertising/recruiting requirements.