I need a LMIA…How can I get one?
What is a LMIA?
During your research on Canada’s immigration process, you may have heard of the term “LMIA” quite frequently, especially if you’re trying to come to Canada to work. In this post, we will be discussing the LMIA, and whether or not you may encounter it in your immigration journey.
A LMIA, or a Labour Market Impact Assessment, is a document that an employer in Canada may need to get before hiring a temporary foreign worker (TFW). A positive LMIA will show whether or not a foreign worker is needed to fill the job, and that there is no Canadian worker or permanent resident available to perform the job. It is issued by Employment and Social Development Canada (ESDC) and gives the Canadian employer permission to proceed with hiring the TFW and thus is required to apply for many different types of work permits.
In order to obtain a LMIA, an employer must first apply for one from the ESDC, and then once the employer receives a positive LMIA, the TFW can apply for a work permit. Their application will be accompanied by a copy of the job offer letter from the Canadian employer. A positive LMIA is also sometimes called a confirmation letter.
For some employers, depending on the job the foreign worker is expected to perform, they may not require a LMIA. However, in order for a foreign worker to work in Canada, they are required to obtain a work permit. There are two programs related to work permits in Canada, the Temporary Foreign Worker Program (TFWP) and the International Mobility Program (IMP). Generally, individuals applying through the TFWP streams will require an LMIA. Employers hiring temporary workers through the IMP are not required to have a LMIA.
Before we explore a LMIA any further, it’s important to differentiate between a job offer letter and an offer of employment. A job offer letter is given to a TFW by a Canadian employer, which will outline the details of the job. It will include information about the worker’s pay and deductions that will be made, their job duties, and their conditions of employment. A job offer letter is required when the position requires an LMIA, and a copy needs to be attached to a TFW’s work permit application. An offer of employment is required when an employer doesn’t need to apply for a LMIA. Instead, they will need to submit an offer of employment in the Employer Portal, which will generate an offer of employment number that is required when the TFW applies for a work permit.
Do I Need a LMIA?
Now that we know what a LMIA is, how do we know if we need one? Most employers will need to go through the LMIA process before they hire a foreign worker. In order to figure out if they need a LMIA or not, employers can look at the LMIA exemption codes and work permit exemptions. If they find a LMIA exemption or work permit code that seems relevant to their hiring situation, they should read through the description. If it does apply to them, they will need to include it in their offer of employment.
Another option is to contact the International Mobility Workers Unit (IMWU). Contacting the IMWU is only available to an employer if they are hiring a temporary foreign worker who is currently outside of Canada, and from a country whose nationals are visa-exempt while falling under the criteria of the IMP.
After going through one of the above options, if an employer discovers they will need an LMIA for the worker, they will need to go through the process of obtaining one. Once a LMIA is issued, the employer should provide the TFW a copy of the confirmation letter and tell them to apply for a work permit. If an employer is hiring a TFW through the IMP a LMIA will not be necessary, but they will need to pay an employer compliance fee (Currently $230 CAD) and submit an offer of employment through the Employer Portal. This must be done before the TFW can apply for a work permit.
What Programs Need a LMIA?
The TFWP will generally require an LMIA if employers want to hire TFWs. Some of the more popular TFWP streams include:
- High-wage positions
- Low-wage positions
- The Foreign Agricultural Stream, which includes workers through the Seasonal Agricultural Worker Program and workers through the Agricultural Stream
- Foreign Academic Stream
- Global Talent Stream
- Owner Operator Stream
What Programs are Exempt?
As we mentioned earlier, employers hiring through the IMP will not require an LMIA. The categories under the IMP include:
- Treaty agreements
- International trade agreements like the CUSMA or GATS – would apply to intra-company transferees
- Canada-International Non-Trade Agreements (including airline personnel, film co-production, NATO, IATA, etc.)
- Canadian Interests – the worker’s presence will provide a significant benefit to Canada
- Permanent residence applicants in Canada
- Vulnerable workers
- Humanitarian reasons
How to Obtain a LMIA
We mentioned earlier that an LMIA can be issued from ESDC. The process of obtaining a LMIA differs depending on the type of program an employer is hiring foreign workers from. The TFWP, which generally requires a LMIA, operates based on wage instead of the National Occupational Classification (NOC). Employers that want to hire foreign workers through the streams under the TFWP need to know whether the position is paying a high or low wage, and the requirements for the particular stream. Depending on which stream an employer is hiring through, the application process is different. However, regardless of the stream, the employer is hiring through, each stream requires the employer to comply with the program requirements.
Let’s briefly go through some of the streams and their particular requirements that need to be met in order to apply for an LMIA.
High Wage Positions
As the name suggests, the stream for high wage positions is where the wage being offered to a TFW is at or above the provincial or territorial median hourly wage. Requirements that are particular to the high-wage positions stream include a transition plan that must be valid for the duration of the TFW’s employment. The plan will describe the activities that the employer will undertake to recruit, retrain, and train Canadians and permanent residents and to reduce their reliance on the TFWP. If the employer has never completed a transition plan, they must submit one. If they have submitted one previously for the same position and work location, they must report on the results of the commitments they’ve made in their previous plan. However, there are exemptions to the requirement of a transition plan as well.
Another difference is the minimum recruitment requirements. For the high wage positions stream, an employer must advertise on the Government of Canada’s Job Bank, and they must also conduct at least 2 additional methods of recruitment that are consistent with the position. One of the methods used must be national in scope, and easily accessible by residents of any province or territory.
Low Wage Positions
If the wage being offered to a temporary foreign worker is below the provincial or territorial median hourly wage, the position falls under the low wage position stream. Requirements that are particular to the low-wage positions stream include transportation, housing, healthcare, and a cap on the number of low-wage positions. The employer must pay for the round-trip transportation costs for TFWs to arrive at their work location in Canada at the beginning of the work period, and the cost to return to their country of residence at the end. These costs cannot be recovered from the TFWs.
As for the housing requirement, the employer must provide or ensure that suitable housing is available for the TFWs they will employ. It is possible that the employers may have to provide proof that the housing they offer meets the standards. For healthcare, the employer must ensure that the TFWs are covered by private, provincial, or territorial health insurance from the first day they arrive in Canada. If provincial or territorial healthcare can’t be provided, the employer must pay for the equivalent private health insurance until the TFWs are eligible for the provincial or territorial plan. Lastly, employers hiring TFWs for low-wage positions are subject to a cap on the number of TFWs that can be hired at a specific work location. However, there are exemptions to the cap. For the sake of this article, I am not going to delve too deeply into the cap as it may be a little bit too granular and can be confusing at the best of times.
Besides the particular requirements for the high-wage and low-wage positions stream, they do share similarities like the minimum recruitment effort, proof of advertisement, the job duties of a TFW, proving business legitimacy, etc. Despite this, an employer must ensure that they understand and comply with the requirements for each stream. In addition, for both of the previous streams, it is important to remember that if you choose to apply through a different stream after applying, you will need to cancel the current application and re-apply to the new stream. The processing funds will not be returned, and they will not be transferred to the new application.
Therefore, please do your research on the position before applying through any of the streams under the TFWP. It is also important to screen any potential workers and see if they have the necessary qualifications for the program. If you are having any issues identifying the stream for the job position or determining whether you require an LMIA for the TFW you plan to hire, consider contacting an immigration professional to assist you.
Global Talent Stream
The Global Talent Stream allows companies to find highly skilled global talent and is aimed at the Tech Industry. It can be used for companies that are referred to the ESDC by a designated referral partner and that need unique and specialized individuals, and also for companies that need to fill a position found on the Global Talent Occupations List.
There are two categories in the stream, Category A and Category B. To be eligible for Category A, a company needs to be referred by a designated referral partner and they are hiring an individual with unique and specialized talent. A list of designated referral partners can be found here.
The designated referral partner must ensure that the company meets the eligibility criteria at the time of each referral to the ESDC, which includes operation in Canada, a focus on innovation, a willingness and a capability of growing or scaling up, and that they are seeking to fill a unique and specialized position in the company.
A unique and specialized position is indicated by:
- at least an $80,000 annual base salary or equivalent to the prevailing wage if it’s higher
- advanced knowledge of the industry, and
- an advanced degree in an area of specialization of interest to the employer, and/or
- a minimum of 5 years of experience in the field of specialized experience
As for Category B, an employer may be eligible if they want to hire a highly-skilled foreign worker to fill positions found on the Global Talent Occupations List. For Category B, there is no requirement for an employer to be referred.
Hiring any foreign worker through the Global Talent Stream will require the employer to work together with ESDC to create a Labour Market Benefits Plan. It will need to demonstrate the employer’s commitments to activities that will have a lasting, positive impact on the Canadian labour market. In addition, there will be progress reviews conducted annually to determine how well the employer is meeting the commitments in their plan. This is a very collaborative approach with this program and a program that has received a lot of support and good words from all stakeholders to the program.
Applying
After going through the specific program requirements, you will need to submit your LMIA application with all required documentation to the appropriate Service Canada processing centre. Each stream has different documents that need to be included in the application package. For example, an application for the high wage positions stream will include the LMIA application form, proof of business legitimacy, and proof of recruitment. In addition, a processing fee will need to be paid. For the three streams that we’ve mentioned, the processing fee is $1,000.00 CAN for each position requested in the particular stream. This is paid to ESDC and will not be refunded if the application is withdrawn, cancelled, or the LMIA is negative. If a LMIA is not required, the employer will need to pay an employer compliance fee of $230.00 CAN.
For the high wage and low wage positions stream, an LMIA application can be submitted up to 6 months before the expected job start date. However, remember that an LMIA is only valid for a maximum of 6 months after being issued by ESDC. If the LMIA expiry date passes and the employer has not performed any of the tasks required to obtain an LMIA, it will no longer be valid, and they will need to submit a new application.
Final Thoughts
That was a brief summary of an LMIA and how it relates to the various work programs that Canada offers. The process of obtaining an LMIA can be lengthy, and it’s very important to make sure you are applying for the right stream, so you don’t waste your time and money.
Should you have any questions about the content in this article or to see if you require a LMIA, feel free to reach out and we will be more than happy to speak with you some more about this and any other immigration issues that you might need answers to.
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