Since the start of 2009, there has been a trend by Service Canada to tighten the Labour Market Opinion (LMO) process. The recession, and its detrimental effect on jobs in Canada, is the main reason for this trend.
New LMO Rules
Since January 1, 2009, we have seen the following changes:
- The introduction of a Directive setting national recruiting standards. In almost all situations, an employer seeking a LMO must demonstrate that these recruiting standards have been met prior to applying for a LMO.
- The elimination of LMO extensions. Employers seeking to continue to employ an incumbent foreign worker must treat subsequent LMOs relating to that worker's position as new applications and therefore must try to recruit Canadians.
- Shorter expiry periods on LMOs. A LMO must be used to apply for a work permit within 6 months of the LMO being issued. Otherwise, the LMO expires and a new application will have to be made. Before this change, the LMOs were often open for use for a much longer period.
It remains to be seen whether further changes to the LMO process will be made. Overall, the changes reflect a tightening of the process, while ensuring that employers look for Canadian candidates first before turning to foreign national candidates.
Lessons for Employers
While LMOs may be more difficult to obtain, the Foreign Worker Program remains a viable source for Canadian employers to meet their labour market requirements.
Employers should keep the following in mind:
- If contemplating an offer to a foreign national, closely examine whether there is a LMO-exempt work permit category available, such as NAFTA's Professional Category or the IT Workers Program. This will avoid the need for a LMO.
- If a LMO is required, look to see whether one of the narrow recruiting exemptions is available. However, the list of exemptions is small.
- Employers need to plan well ahead to ensure that the national recruiting standards are met before applying for LMOs in most cases.
- Employers with foreign nationals on work permits will usually need to show that the new recruiting requirements were met even where they are seeking to extend the foreign national with another LMO/work permit.
- Employers with foreign nationals on work permits derived from LMOs should consider moving those workers to permanent resident status to avoid having to apply for a new LMO.
- Employers may want to consider using Provincial Nominee Programs ("PNPs") for their foreign national employees. Once a provincial nomination is obtained, it may be used to obtain a new work permit, thereby potentially eliminating the need to obtain a future LMO while the worker's permanent resident status is finalized.
Employers need to manage the changes to the LMO process with advanced planning for both new positions and for subsequent LMO applications for current foreign national employees. The introduction of minimum recruiting requirements also adds to the overall processing time to obtain a LMO, as recruiting must be undertaken for at least 14 days in most cases.