Canadian employers looking to hire Temporary Foreign Workers must first receive government permission to hire from abroad. In most cases, this permission comes in the form of a Labour Market Opinion (LMO).
An LMO is a document issued by Human Resources and Skills Development Canada (HRSDC) stating that the hiring of a foreign worker will have a positive or neutral effect on the Canadian labor market. Temporary foreign workers must receive an LMO in order to receive a temporary work permit unless specifically permitted to bypass this requirement. In order to receive a positive LMO, Canadian employers must submit an application where they successfully demonstrate that no Canadian citizen or permanent resident could be found to fill the desired position in Canada. The time period for preparing an application and receiving an LMO generally takes at least three months.
Because every employment situation is unique, no two LMO applications will be exactly the same. The complexity inherent in preparing such an individualized application means that refusals can happen for mistakes as simple as clerical errors. Below are four common mistakes employers make when applying for an LMO – and what can be done to avoid them:
1. Insufficient Recruitment in Canada: In almost all LMO applications, the Canadian employer must first recruit for the open position in Canada. Recently, HRSDC raised the minimum recruitment period from 2 weeks to a full 4 weeks. In most cases, HRSDC mandates that recruitment take place on the government jobs website (www.jobbank.gc.ca, or an equivalent provincial site). In addition, the employer is now, in most cases, required to advertise in two additional venues. Recruitment must be completed within three months of an LMO application submission. Additional rules apply to individuals looking to hire semi- and low-skilled workers.
An LMO application will be refused if recruitment standards are not met. To mitigate this, when possible employers should recruit for a period of time longer than the minimum amount required. They should also be aware that some positions may be advertising exempt. Many advertising exemptions vary from province to province.
2. Failure to Meet Wage and Job Requirements: Foreign workers in Canada are afforded the same job standards as their Canadian counterparts. The LMO application process serves, in part, as a way to ensure that these standards are upheld. The application asks employers to provide information on the wages, benefits, and general working conditions of the job being offered.
Employers must indicate that they will be paying their foreign worker a salary equal to or greater than the prevailing wage for their occupation. If they fail to do this or to meet Federal and Provincial job standards, the application will be refused. Employers should thoroughly research the salary standards for the job position.
3. Incomplete or Inaccurate Application: It goes without saying that the LMO application form should be filled out and checked for both completion and accuracy.
When preparing an application, employers should address the following questions:
- Am I applying for the right approval? Does this job require an LMO, is it LMO-exempt, is it advertising exempt?
- Am I able to provide all necessary papers on my business, if requested?
- Am I prepared to speak with an HRSDC official about the job and desired employee, if they choose to call? If an employer cannot be reached, HRSDC may refuse an application.
4. Cannot Convince Officer of Need for a Foreign Worker: A positive LMO will not be issued if the officer reviewing the file believes that the hiring of a foreign worker will take a job away from qualified Canadians. This may happen if the requirements for the specified job are too broad, or the skills needed to perform job tasks are not particularly specialized, and therefore easy to fill.
When conducting recruitment in Canada, employers should be sure to carefully construct their advertisements to reflect the specific skills needed for the position. They should be aware that requiring competency in a language other than English or French is only allowed if the employer can demonstrate that knowledge of the language is essential. Providing a report of recruitment efforts and responses from interested candidates will strengthen one’s argument.
“Understanding the LMO process is a necessity for anybody looking to hire from abroad,” said Attorney David Cohen. “Of course, most employers wish to have their workers come to Canada as soon as possible. LMO applications require special care and attention to detail to ensure that employers don’t waste precious time and money reapplying.”
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