Some Background

Service Canada is the service delivery arm of the Canadian Ministry of Human Resources and Development Canada. Through the TFWP, this body is tasked by Citizenship and Immigration Canada to assess the impact of the admission of a foreign worker, other than a foreign worker eligible for exemption. This applies to the majority of candidates seeking to engage in temporary work in Canada; exemptions are based on either International Treaties or Canadian Interests.

A Labour Market Opinion is rendered by Service Canada if, after reviewing an application from an employer, they are satisfied that the admission of the foreign worker will not have an adverse effect on the Canadian labour market.

Accelerated Labour Market Opinion Initiative

The A-LMO continues to assess most of the criteria fundamental to a traditional LMO approval. As such, Service Canada will continue to review these cases to determine that the job offer is genuine, that the wage offered to the foreign worker is consistent with that needed to attract and retain Canadians, and whether or not the job offer fills a labour shortage. The program does not, in its current form, address those situations in which the employment of a foreign worker will directly create or retain Canadian employment, or where there is a transfer of knowledge or skills to Canadians. In those cases in which admission is not sought on the basis of a labour shortage, it is expected that the case will be processed in the normal streams and subject to the requirements of such.

Employers will need to meet certain requirements to be eligible in the A-LMO program:

1. They will need to be established in Canada;
2. They will need to be the recipient of one or more positive Labour Market Opinion Confirmations within the two years prior to registering;
3. They will need to consent to post A-LMO Compliance reviews; and
4. They will not have been the subject of any investigation, infraction, or serious complaint, and do not have any unresolved violations or contraventions under employment and recruiting legislation.

An eligible employer will be able to pursue an A-LMO application if the offer to the foreign worker meets certain requirements:

1. They will need to agree to all attestations that are part of the A-LMO application process;
2. The wage offered to the foreign worker will have to be consistent with policies governing prevailing wage; and
3. They will have met minimum Canadian recruiting requirements prior to offering the position to the foreign worker and submitting the A-LMO application.
4. They are offering employment in a Management, Professional, or Technical occupation (i.e., NOC 0 or A), other than an occupation in film and entertainment or agriculture sectors.

Compliance

As part of the application process, the employer will agree to potentially undergo Compliance review following the A-LMO approval. It is expected that 18% of A-LMO approvals will be subsequently and randomly selected to undergo this review process. That number is certainly high enough to ensure that employers adhere to requirements of the program and LMOs in general, as there are consequences to the employer and/or present and future LMOs and LMO applications.

A compliance review involves Service Canada’s assessment of whether or not the employer has provided the foreign worker with “substantially the same” wage and working conditions as was offered during a prior A-LMO or LMO application in the two previous years including:

• that the employer provided the foreign worker the same wages and working conditions as those offered to Canadians in the same occupation and location;
• that employer can document performance of the minimum recruitment efforts required;
• that the employment of a foreign worker did fill a Canadian labour shortage;
• that the employment of a TFW did not adversely impact the outcome of a labour dispute; and
• that the employer agrees to abide by the relevant laws regulating employment and recruitment.

• a public post-secondary academic institution;
• a private post-secondary institution that operates under the same rules and regulations as public institutions, and receives at least 50 percent of its financing for its overall operations from government grants;

At present, candidates applying for new work permits or renewals of work permits for most IT development positions are subject to the requirement of a Labour Market Opinion. For nationals countries participating in Free Trade Agreements, exemptions may be possible for Systems Analysts. For nationals of countries participating in the General Agreement on Trade in Services, exemptions may be possible for certain Senior Computer Specialists seeking permits of no longer than 90 days within a one year period.

There is presently no indication as to how long the temporary termination of Canadian work permit services will last.

The prospect of sharing of information has certain advantages and disadvantages to holders of Canadian work permits. A principal goal of the effort would be to have better information on the movement of temporary residents relative to their permission to stay in Canada. For example, there would be more knowledge of whether or not a given individual respected the conditions of a temporary stay in Canada, leaving or otherwise renewing status within the time permitted. If implemented, an individual who overstays could face negative consequences in the case of any future effort to seek admission to Canada.

In certain cases, work permit holders are constrained by time limitations associated with the issuance of a Canadian work visa. For example, intra-company transferees may be  permitted stays of between five and seven years, but such time is assessed only against the duration of time actually spent in Canada. In such a case, better exit controls may serve the purpose of facilitating demonstration of the duration of the actual stay of such a work permit holder, permitting the maximum actual duration of validity of the immigration document.

It is not yet clear how or if this effort will be implemented. There are also differing accounts of the extent and purpose of information sharing. However, this could be a very important development for the two countries.

Citizenship and Immigration Canada will therefore require Labour Market Opinions (i.e., Confirmations) for temporary work permit applications which had been earlier subject to the Facilitated Processing of Information Technology Workers provisions. The only exception at present is for cases in which the work is in the province of Quebec, where the program remains active for an undefined period; it should be noted that those cases are however subject to the requirement of a Certificat d’acceptation du Québec prior to seeking the work permit.

The Facilitated Processing of Information Technology Workers program was a collaboration between Citizenship and Immigration Canada (CIC), Human Resources and Skills Development Canada (HRSDC), and the Software Human Resources Council (now defunct). It was intended to expedite the admission of foreign workers in certain defined information technology occupations, primarily those in software development, by allowing admission in the absence of a Confirmation Letter from HRSDC. Those eligible were deemed to be admissible under what was termed a National Confirmation; i.e., no negative labour market impact was automatically determined by HRSDC. The program was enacted at a time, in the late 1990’s, when there was a perceived critical shortage of such IT professionals.

HRSDC issued notice in 2010 that this program would be terminated on September 30 2010, with the exception of the provinces of British Columbia and Quebec. Quebec and BC were the only provinces to extend the program at that time. Quebec did so for an undefined duration, and BC did so for incremental periods. As BC has now terminated the program, only Quebec is still subject to these provisions; all other cases must first obtain a LMO Confirmation prior to proceeding with the work permit application. Any case submitted for work in the province of BC prior to January 1 2012 will be processed to its conclusion and could be eligible for a work permit of up to one year from the date of its issuance.

In the past, these candidates would have to have passed approval-in-principle prior to being eligible to seek an open work permit. However, this may take many months, forcing the individual to continue to reside in the home of the employer. Recognizing that this is a potential inconvenience, and due to increases in backlogs for approval-in-principle, the government has adopted this new policy to reduce the burden on candidates and employers.

At present, although employers do not need to first apply for a Labour Market Opinion in order to employ an eligible IT worker, they are required to notify Service Canada and the Ministry of Regional Economic and Skills Development of an intent to offer the position to a foreign worker prior to being able to proceed with an application to Citizenship and Immigration Canada.

A new direction has been issued by which time spent abroad will not be counted towards these caps. For example, if an executive is spending only 50% of his or her time in Canada as a Transferee, then only 6 months out of a given 12 month period would be counted towards the 7 year cap.

Until the program is further elaborated, the Canada-Peru Free Trade provisions are being used as a template for assessment of candidates. This includes the lists of excluded and included Professionals, Technologists, and Technicians. The Colombia FTA is the first to include provisions specific to spouses, whereby spouses of foreign workers admitted under the program can seek admission under a newly coded LMO exemption.