Business Immigration

Brian Dingle for The Lawyers Weekly

October 23, 2009

Without consulting stakeholders, Service Canada made a significant change to Canada's temporary foreign worker program when it replaced the Regional Occupations Under Pressure List with a minimum recruiting requirements directive on Jan. 1.

Presumably, the change was made in response to the global economic crisis, although it was also to address the inconsistent application of the recruiting requirement found in subs. 203(3)(e) of the Immigration and Refugee Protection Regulations (IRPR) by Service Canada's regional offices.

Failure to comply with the new mandatory advertising requirements will result in the denial of a Labour Market Opinion (LMO).

Labour Market Opinion criteria

The general procedure for obtaining a work permit is for an employer to make an offer of employment to a foreign national and have the job offer confirmed by Service Canada. If the foreign national's employment is likely to have a neutral or positive effect on the Canadian labour market, Service Canada will issue a positive LMO, which the foreign national may use to obtain a work permit. Subsection 203(3) of IRPR outlines the six factors that must be considered in assessing an application for an LMO:

- whether the foreign national's employment is likely to result in direct job creation or job retention for Canadian citizens or permanent residents ("Canadians" );

- whether the employment of the foreign national is likely to result in the creation or transfer of skills or knowledge for the benefit of Canadians;

- whether the employment of the foreign national is likely to fill a labour shortage;

- whether the wages offered to the foreign national are consistent with the prevailing wage rate for the occupation and whether the working conditions meet generally accepted Canadian standards;

- whether the employer has made, or has agreed to make, reasonable efforts to hire or train Canadians; and

- whether the foreign national's employment is likely to adversely affect the settlement of any labour dispute in progress.

National advertising requirements

The national recruiting requirements do not take business realities into account since they are determined solely by the skill level of the occupation within the National Occupational Classification (NOC) matrix.

While recruitment is relevant for most LMO applications, there will be circumstances where it is unreasonable to require an employer to attempt to recruit Canadians. Subsection 203(3) allows an officer to consider other factors that might indicate a benefit for Canada and Canadian job-seekers that would offset concerns about recruitment; it does not make advertising a prerequisite to the issuance of an LMO, nor does it give recruitment greater weight than the other enumerated factors. By making minimum advertising requirements mandatory, the directive limits an officer's discretion to consider whether recruiting would be reasonable in the circumstances, or whether it would be reasonable for the employer to hire and train Canadians for a position.

The directive has been interpreted strictly by officers since its introduction. Regardless of an employer's ability to demonstrate that a foreign national's employment would fill a labour shortage, or would result in the creation of new jobs or the transfer of critical skills or knowledge for the benefit of Canadians, the LMO application has been refused if the advertising requirements are not met.

This has hampered employers' ability to respond to business and labour market realities. This was especially frustrating for employers who did not have advance notice of the directive but had nevertheless engaged in meaningful recruitment activities that did not comply with the directive's "boilerplate" requirements.

Recent variations to the advertising requirements seem to recognize that the original directive was too inflexible. For instance, no advertising or recruitment is required in certain circumstances, including when:

- the work involves the installation, inspection or repair of equipment and the terms of the warranty require the work to be done by skilled workers designated by the manufacturer;

- the work requires a specialist familiar with the overall operation to do the work on a regular basis, the duration of the work is limited and there is no opportunity for Canadians to be trained;

- the position is for a specific occupation in the entertainment sector where the workers often work for a limited number of days in a specific location and on very short notice; and

- the employer is making a permanent job offer in a skilled position to international graduates who have completed the post-graduation work permit program.

These variations, however, do not go far enough. The directive should clearly state that LMOs can be issued in the absence of recruiting and that recruitment should be given equal consideration to the other factors enumerated in subs. 203(3) of the IRPR.

How can employers respond?

As a starting point, employers should ensure that recruitment practices comply with the directive. Consideration should also be given as to whether a work permit can be obtained pursuant to an LMO-exempt category, such as Confirmation Exemption Code (CEC) C10 as it applies to foreign nationals whose employment will result in significant benefits to Canada, CEC C12/T24 as it applies to intra-company transferees and CEC T23 as it applies to NAFTA professionals.

Like Service Canada's minimum recruiting requirement directive, however, Citizenship and Immigration Canada is taking an increasingly restrictive approach to the adjudication of LMO-exempt work permits. Given these changes to Canada's temporary foreign worker program, employers face significant hurdles in obtaining temporary work authorization for foreign workers to meet critical labour shortages.

Brian Dingle is a partner in Borden Ladner Gervais LLP's Business Immigration Group in Toronto. He represents employers in various sectors, including IT, finance and industry, but he focuses primarily on the entertainment sector.

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