Updates on Labour Market Impact Assessment Requirements Come Into Effect This Month

Canadian employers using the Temporary Foreign Worker Program (TFWP) have been urged to note changes with respect to job offers in streams for High-wage and Low-wage positions, after modifications were made to requirements in both streams this month.

The TFWP allows Canadian employers to hire foreign nationals to fill labour shortages in Canada, while ensuring that Canadian citizens and permanent residents have the first opportunity to apply for open job positions. The TFWP is jointly administered by Employment and Social Development Canada (ESDC) and Immigration, Refugees and Citizenship Canada (IRCC, formerly known as CIC).

The median hourly wages by province/territory table has been updated, with the new wage requirements to come into effect as of April 29, 2016. The annual unemployment rates by economic region table has also been updated, with those rates having already come into effect as of April 1.

Employers are required to use the median hourly wages by province/territory to know which TFWP requirements they have to meet. The wage being offered, along with the location for the position, will determine if the employer needs to apply for a Labour Market Impact Assessment (LMIA) under the stream for high-wage or low-wage positions, each of which has its own requirements.

Employers offering a wage to a temporary foreign worker that is: 

• Below the provincial/territorial median hourly wage will be subject to all of the requirements of the Stream for Low-wage positions;
• At or above the provincial/territorial median hourly wage will be subject to all of the requirements of the Stream for High-wage positions.

As of April 29, 2016, the new median hourly wages by province/territory will need to be used by employers to determine if the position is high-wage or low-wage.

High-wage stream

Employers seeking to hire high-wage workers must submit transition plans along with their Labour Market Impact Assessment (LMIA) application to ensure that they are taking steps to reduce their reliance on temporary foreign workers over time. High-wage workers are those earning above the median hourly wage for a given occupation in specified region.

The transition plans are designed to ensure that employers seeking foreign workers are fulfilling the purpose of the program. This entails that they are using the program as a last and limited resort to address immediate labour needs on a temporary basis when qualified Canadians are not available, ensuring that Canadians are given the first chance at available jobs.

It is important to note that the TFWP uses the National Occupational Classification (NOC) codes to determine the prevailing wage and to ensure that the appropriate job requirements and duties are used for the occupation. After employers have determined that they are hiring a foreign worker for a high-wage position, they must ensure that they meet all of the requirements for that stream, including meeting the wage requirement.

A recent case, highlighted in the April 2016 ‘Lexbase’ compilation of Canadian immigration information, reveals just how important it is for employers to note these changes.

On October 3, 2014 the prevailing rate for Business development officers and marketing researchers and consultants (NOC 4163), as published on the Job Bank website, changed from $27.97/hour to $31.25/hour. On the same day, the Applicant (employer) submitted their application with an offered rate of $27.95/hour. Ultimately, the application was dismissed as it did not fulfil the requirements.

Median Hourly Wages by Province/Territory

Low-wage stream

The stream for Low-wage positions allows employers to hire foreign workers for full-time positions where the wage being offered is below the provincial/territorial median hourly wage where the job is located. As with the high-wage stream, NOC codes are used to determine the prevailing wage and to ensure that the appropriate job requirements and duties are used for the occupation.

Currently, the TFWP is refusing to process LMIA applications for 10 low-wage/lower-skilled occupations from employers that are included in the Accommodation and Food services sector and the Retail trade sector in economic regions across Canada that have an unemployment rate of 6% or higher. These occupations are:

• Food counter attendants, kitchen helpers and related occupations (NOC 6641);
• Light duty cleaners (NOC 6661);
• Cashiers (NOC 6611);
• Grocery clerks and store shelf stockers (NOC 6622);
• Construction trades helpers and labourers (NOC 7611);
• Landscaping and grounds maintenance labourers (NOC 8612);
• Other attendants in accommodation and travel (NOC 6672);
• Janitors, caretakers and building superintendents (NOC 6663);
• Specialized cleaners (NOC 6662);
• Security guards and related occupations (NOC 6651)

A list of unemployment rates by economic region can be found at the end of this article.

Employers take note

“As the case of that company that wanted to hire a business development officer from abroad shows, attention to detail is always paramount when it comes to hiring foreign workers under the Temporary Foreign Worker Program,” says Attorney David Cohen.

“Median hourly wages and local unemployment rates are just two possible considerations when recruiting. In addition, there may be transition plans, advertising requirements, compliance reviews, and any other number of factors, depending on the situation. As many employers will know, since the summer of 2014 program requirements have become more onerous, with more detail going into each application. In order to succeed and get the people you want into your company, it is important to get things right the first time.”

To enquire about obtaining a work permit for Canada or if you are a Canadian employer wishing to hire internationally, please contact the Campbell Cohen work permit team an email at wp@canadavisa.com.

Annual Unemployment Rates by Economic Region

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