As of October 1, 2010, Information Technology (“IT”) workers will no longer be exempt from obtaining a positive Labour Market Opinion (“LMO”) in order to work in Canada. An LMO is a confirmation from Service Canada that bringing a foreign worker into Canada will not have an adverse impact on the Canadian labour market. Since 1987, workers who fit into one of seven specific occupational categories (and most IT workers fit into one of the seven categories) have been exempt from the requirement to obtain an LMO. The exemption was part of a pilot project (the “IT Workers Program”) that was implemented to address a shortage of skilled workers in the rapidly growing IT sector. Under the IT Workers Program, an employer was not required to obtain an LMO in order to hire foreign IT workers. Instead, foreign IT workers applied directly for a work permit with Canadian Citizenship and Immigration, and Canada Border Services Agency, who determined the eligibility of each candidate.
The standard process for obtaining a work permit is by way of obtaining an LMO. The process is described below, and it should be noted that the process takes considerably more time to complete than the process under the IT Workers Program, and employers need to strategize for the future.
Applications that are made prior to September 30, 2010 do not need the LMO, and therefore, it is advantageous for employers to obtain renewals or initial work permits for Foreign Workers under the IT category before this date.
The Future: A Strategy for Success
To obtain an LMO, the employer makes an application to Service Canada demonstrating that they have made considerable efforts to fill the position in Canada and that there are no suitably qualified Canadian citizens or permanent residents for the job in Canada. This necessitates a minimum advertising period of two weeks in every three month period. The Service Canada application process for an LMO takes from two to six weeks depending upon the geographic region. The work permit application can add one or more weeks (even months) to the process.
Consequently, it is important to: (i) identify the types of IT jobs for which you will be requiring IT workers; (ii) advertise them for at least 14 consecutive days in every three month period; (iii) make sure that the advertisements meet the requirements set out below; (iv) record all responses from the potential candidates to demonstrate why they did not meet your requirements; and (v) plan for the processing to take more than three or four weeks as Labour Market Opinion processing times vary at each Service Canada office.
The following are the potential sources for you to place your ads:
- Industry Publication website
- Local newspapers
- The company’s website
- Local community centres
- Trade publications
- Internet advertising
Advertisements must include the following information:
- Job title
- Job duties
- Job requirements (experience, training, certification, licenses, etc.)
- Working conditions (hours of work, days of work, etc.)
- The business’ name and the name, address and phone number of the individual to contact regarding the job
An Alternative Solution
A potential solution for some companies will be to send existing employees as intra-company transferees. Similar to individuals who were able to take advantage of the IT Workers Program, intra-company transferees are exempt from the need to obtain a LMO.
Intra-company transferees are employees that are sent from their foreign company to a Canadian branch, affiliate or subsidiary office. There need to be legal corporate bodies in existence both outside of Canada as well as inside.
An employee who is working for a foreign company for at least 12 months as a manager, executive or specialized knowledge worker is LMO exempt and may apply as an intra-company transferee. The processing times are much faster and workers can renew their permits often for a lengthier period of time than the LMO process. Executives and managers can renew inter-company transferee work permits for up to seven years and skilled workers can renew work permits for up to five years.
While the IT Workers Program will no longer be available as a human resources management strategy to bring IT workers into Canada, there are strategies to assist in the LMO process as well as alternative solutions to bring IT workers to Canada.