Work Permits for Canada: LMIA and LMIA Exempt, What Does it Mean?

(The following article is for informational purposes, and is not to be considered as legal advice, or a replacement for legal advice from a licensed attorney or registered immigration consultant).

For individuals wishing to work and settle in Canada, there is often confusion surrounding how and when a person is allowed to come to Canada to work in a job, either through a third party employer, or their own business. Canada has one of the most inclusive immigration systems in the world, as the Canadian government tries to ensure that there are enough productive workers to meet local economic requirements, in light of a declining and ageing population. However, the immigration system can be opaque, strict and difficult to navigate, as the government also regulates immigration heavily through permits and quotas. We will discuss how individuals can qualify for a work permit to come to Canada for temporary work. Individuals who possess a work permit can transition to permanent residency after working for a year or more, through the Canadian experience class, if they qualify. However, getting the initial temporary work permit can be a little complicated, and oftentimes, a Labour Market Impact Assessment is required. In this article we will discuss the Labor Market Impact Assessment process briefly, as well as some types of visas which are exempt from this process.

Labour Market Impact Assessment

The Labour Market Impact Assessment (LMIA) which was formerly known as a Labour Market Opinion (LMO) is a document issued by Economic and Social Development Canada (ESDC) assessing the impact of employing a foreign worker in Canada. A Canadian Employer needs a positive LMIA before hiring a foreign employee to confirm that there is a need for a temporary foreign worker. A negative LMIA protests that a Canadian should be employed instead of a foreign worker. By default, foreign workers who wish to work in Canada require an LMIA.

During the LMIA review process, Employment and Social Development Canada (ESDC) assesses an offer of employment to ensure that the employment of a foreign worker will not have a negative impact on the Canadian labor market. In the analysis of the offer of employment, ESDC will consider the following: 1) If the salary offered to the foreign worker is consistent with the average wage paid for the occupation, in the location where the position is located, 2) whether the working conditions are consistent with labor laws and/or collective bargaining agreements, 3) if there is a labor shortage for that occupation in the location where the position is located, 4) whether there is an ongoing labor dispute in the company and/or industry, 5) whether the employer has undertaken recruitment efforts in order to find a Canadian to fill the position, 6) if the foreign worker will be able to transfer unique skills or expertise to Canadians, 7) whether hiring the foreign worker help to create or retain jobs for nationals, 8) If the foreign worker will work on a full-time basis at a predetermined wage for the Canadian employer. A positive LMIA will show that there is a need for a foreign worker to fill a job, and that no Canadian is available to work in the particular job.

However, there are a number of situations which allow foreign residents to take up work in Canada without a work permit as well.

Exemptions to the LMIA

1. International Mobility Program (IMP): The IMP allows a Canadian employer to hire temporary foreign workers without the need for a LMIA, if it is in the cultural or economic interests of Canada. The employer must follow three steps in order to hire foreign worker/s through the IMP:

1. Provide proof which confirms that the position or worker in question qualifies for an LMIA-exemption.

2. Pay the employer compliance fee of $230 CAD

3. and use the IMP’s Employer Portal to submit the official job offer.

This is an interesting development in Canadian Immigration processes, as this alternative to the LMIA process is much less rigid. It seeks to further Canada’s cultural and economic interests by including a more streamlined process, without the need to offer work to nationals first, or prove there is a distinct need for the worker. This process is based on various treaties Canada maintains, and facilitates programs such as the “International Experience Canada” program, that permits young workers from regions which maintain reciprocal arrangements with Canada, such as Europe or the UK for example, to work in Canada to gain international experience. This process can also be used for workers who come to work in Canada under international treaties, such as the US-Canada-Mexico Free Trade Agreement (formerly NAFTA), or the Canada European Trade Agreement. Generally, workers in this category have to qualify for an LMIA exemption beforehand, before making use of the streamlined application processing which is enabled through the International Mobility Program.

2. International Agreements: Workers may be able to come to Canada under Free Trade Agreements between Canada and other countries like the North American Free Trade Agreement (NAFTA), Canada-Chile FTA / Canada-Peru FTA / Canada-Colombia FTA / Canada-Korea FTA , Canada-European Union Comprehensive Economic and Trade Agreement (CETA), and General Agreement on Trade in Services (GATS). If such a possibility exists under a treaty, the treaty will specifically allow for the free movement of workers between borders, with certain limited conditions in some cases.

3. Canadian Interest Exemptions: to qualify for an LMIA-exemption under the category of significant benefit for Canadians, the employment of a foreign national must demonstrate significant social or cultural benefit to Canada.

4. Intra-company transferees:

If a foreign national (from any country) is an employee of a multinational company in a location outside of Canada, they may be eligible to obtain an LMIA-exempt work permit to transfer to one of the company’s locations within Canada and high-skilled foreign nationals can work temporarily in Canada as intra-company transferees. Employers should provide a variety of information about the position for which they are hiring a foreign worker, including details about the job offer and the relationship between the worker and the company hiring them. This applies to foreign nationals from any country, including under the General Agreement on Trade in Services (GATS).

In addition, to be eligible for Intra-Company Transfer these are the general requirements for an employee which need to be met: Firstly, The worker who wishes to enter Canada must be employed at a multinational company’s parent, subsidiary, branch, or affiliate for at least 1 year (full-time) with the company within the previous 3 years, ; and Secondly, the candidate must be applying to work in Canada in a position at the executive level, senior managerial level, or in a position requiring specialized knowledge i.e. company-specific expertise related to a company’s product or services and knowledge gained through significant experience.

5. Post Graduate Work Permit: International students who complete over 9 months to 1 year of study in Canada at a designated learning institution (approved by the government), are eligible for a post graduate work permit, which will allow them to take up work in Canada.

6. Open work permit: This is a work permit that is not job-specific. This kind of work permit may be issued to the spouses of international students or people in Canada who already possess a work permit, for example.

The above list is by no means exhaustive or comprehensive. To get more information, please do reach out to us at info@borderlesscounsel.com