A Canadian LMIA is a document that an employer in Canada may require to possess before hiring a foreign worker. A positive LMIA affirm that a vacant job can only be handled by a foreign worker and no Canadian permanent resident or worker is available to do the job.
The employer only applies for the LMIA document, and once obtained it is sent to the foreign worker who can then apply for a work permit. Notable thing is that the worker must tie up the LMIA to his/her work permit application. This is a general requirement of the temporary foreign worker who requires a positive LMIA and the work permit to work in Canada for a particular job.
Not every job needs an LMIA, certain jobs are exempted from this requirement.
Factors that are considered by the CIC to make an LMIA application decision:
The decision lies in the hand of Employment and Social Development Canada (ESDC) officers who often will be in close communication with CIC and the Canada Border Services Agency (CBSA) to finally decide whether or not to issue a positive LMIA. The final decision of the will then be issued to Citizenship and Immigration Canada (CIC), who will then inform the employer of the LMIA decision.
The considerable factors include following:
- Impact of hiring an overseas worker on the Canadian Labour Market.
- Wages & working conditions offered to the foreign candidate.
- Availability of permanent residents or Canadian citizens to do the work in question
- Whether the worker will contribute in the transfer of useful skills or knowledge
- Whether the hiring will contribute to the creation of jobs for Canadian citizens and permanent residents.
LMIA Validity and Duration of Employment
Once a positive LMIA is issued, certain things are need to taken care of:
- A temporary foreign worker has only six months to use the LMIA to apply for a work permit.
- There will be no extension period.
- In case a worker misses to submit the work permit application in 6 months then a new LMIA application is required.
- It is for live-in caregivers applied to work in Quebec. The steps to the application are different. The worker first has to apply for an LMIA, after receiving the LMIA the next step would be to apply for the Certificat D’Acceptation du Quebec (CAQ) then a work permit is applied. Because of the processing time linked with the CAQ, the LMIA will be valid for 3 months following the issuance of CAQ, inspite of the LMIA expiry date.
There is a difference between the validity of the LMIA and the duration of the employment of the LMIA.
The validity of the LMIA: This is the time duration in which an employee has to use the LMIA and apply for a work permit.
The duration of employment of an LMIA: This is the length of the validity period of a potential work permit which will be granted using LMIA. There are 3 options that relate to the duration of the employment of an LMIA.
- Short-term and temporary duration to support a work permit application only.
- Permanent duration to support a permanent residence application which will be issued for a maximum period of two years provided the foreign national meets the requirements set out in the LMIA. The work permit will not be extended regardless of whether or not a permanent residence application is underway.
- A collaboration of permanent and temporary duration to support both a permanent residence application and a work permit application.
Effective April 30th, 2015, there’s a single form that has got to be used for all LMIA applications, earlier there have been separate application forms for LMIA applications for high-wage and low-wage jobs. The new form is used for ALL LMIA applications which is entitled EMP5602. The form generally encapsulates the same questions as previous LMIA forms.
However, the new form also contains a notice to employers regarding conditions where an employer changes a foreign worker’s terms and conditions of employment. It is mandatory for the employer to instantly inform Service Canada if they make any changes to a worker’s terms and conditions of employment as described in the original positive LMIA. In such situation two cases arise:
- If changes made are acceptable the foreign workers file is updated accordingly. In some cases, it may be required by the Service Canada for an employer to apply for a new LMIA.
- In other case, changes to the foreign worker’s terms and conditions are not informed and Service Canada discovers it upon inspection then the employer will be held responsible. Consequently, the employer would face Administrative Monetary Penalties, and a ban from hiring temporary foreign workers in the future for a period of time.
Service Canada presently relies on 2014 economic data when evaluating LMIA application. The High-wage LMIA applications are generally processed faster, who are offered within the top 10% of wages. This is normally offered for the job at hand and is considered a high-wage applicant.