Included in Beyond the border: Immigration update – February 2022

Brendan Sheridan

The majority of foreign nationals coming to work in Canada require a work permit to provide their services with limited exceptions. While there are a number of pathways that employers and applicants can use to facilitate the work permit application, the primary pathway is through a Labour Market Impact Assessment (“LMIA”) application. In fact, LMIAs are often considered the default route for foreign nationals to obtain a work permit.

To obtain an LMIA-based work permit, the employer of the foreign national will first have to apply to Service Canada / Employment and Social Development Canada for an LMIA. Once a positive decision is obtained on this application, the foreign national can then use the LMIA approval to apply for their work permit.

In most cases, to apply for the LMIA, the employer is required to undergo a 4-week advertising period with strict requirements on the content of the advertisement and places that it can be posted. This advertising and subsequent recruitment must be completed before the LMIA application is submitted to Service Canada for processing. The purpose of the 4-week advertising period is to demonstrate that the employer was unable to find suitably qualified Canadian citizens or permanent residents for the job. Only when it is demonstrated that hiring the foreign national will result in a positive or neutral impact on the Canadian labour market will the employer be approved to hire a foreign worker in that role and receive a positive LMIA decision.

While proof of advertisement is required in most LMIA applications, there are limited exemptions or variations to the 4-week advertisement requirement. These variations allow employers to apply to Service Canada for the LMIA with different levels of advertisements – sometimes less time advertising or no advertising at all. Employers relying on a variation to the LMIA advertising and recruitment requirement must be prepared to explain how the company and position qualify for this variation.

These variations to the advertising requirements are specified classes and are based on specific requirements related to the position, the required work or the employer.

Variations to minimum advertising requirements for LMIA applications

This article will briefly outline a few of the more frequently used variations to the advertising requirements below. The variations to minimum advertising requirements for LMIA applications that employers can consider when exploring the LMIA route include, but are not limited to:

1. Entertainment sector: While there are a number of ways for foreign nationals working in the entertainment sector to receive authorization to work in Canada, an LMIA application is one means to facilitate their entry.

This variation to the minimum advertising requirements is limited to positions within the entertainment sector where the worker is generally hired for a very limited number of days, in a set location and on very short notice. Employers qualifying for this variation to the minimum advertising requirements do not need to advertise or recruit for the position that they are seeking to fill, but the employer must demonstrate how the position qualifies for this exemption.

While the variation requires that the position is for a limited number of days and is needed on very short notice, there is no set threshold on what qualifies for these requirements. Instead, Service Canada will use their judgement to determine if the position qualifies for this advertising variation. Key actors, artists, singers, musicians, film and television crews for short productions, or commercials and more may be able to benefit from this variation to speed up the LMIA process.

2. Primary agriculture positions: There are a number of LMIA routes that could be used when hiring foreign workers in agriculture positions. These include the Agricultural LMIA, the Seasonal Agricultural LMIA or simply hiring workers in primary agriculture positions through a high-wage or low-wage LMIA.

Employers that are hiring foreign nationals to work in primary agriculture positions through a high-wage or low-wage LMIA are eligible for a variation to the minimum advertising requirements. Specifically, a qualifying LMIA application only needs to show that the advertisements were posted on Canada’s national Job Bank and at least one additional method for a minimum of 14 calendar days during the 3-month period prior to the employer applying for an LMIA.

To qualify for this advertisement variation, the employer has to demonstrate that the workers will work in “primary agriculture” and that the company has complied with the advertising requirements in the LMIA stream they are applying through (i.e.: high-wage, or low-wage LMIA). A primary agriculture position must meet the below requirements to qualify:

1. 1. be performed within the boundaries of a farm, nursery or greenhouse;
   2. involve at least one activity, such as:
      • operation of agricultural machinery;
      • boarding, care, breeding, or other handling of animals, other than fish, for the purpose of obtaining raw animal products for market; or
      • collection, handling and assessment of those raw products, or the planting, care, harvesting or preparation of crops, trees, sod or other plants for market;
   3. be consistent with one of these National Occupational Classification codes: 0821 (ex: farm managers), 0822 (ex: greenhouse nursery managers), 8252 (ex: farm supervisors), 8255 (ex: greenhouse supervisors), 8431 (ex: general farm workers), 8432 (ex: greenhouse nursery workers), and 8611 (harvest labourers).

3. Positions for a short duration: Employers may also benefit from an LMIA advertising variation for positions that are of a very short duration. This advertising variation is allowed in very limited circumstances and waives the advertising and recruitment requirement for employers.

To qualify for the advertising variation for short duration positions, employers must demonstrate the following:

1. 1. the employer needs to hire a foreign worker on short notice,
   2. the position being filled is available for a short duration (30 days or less);
   3. the job will no longer exist after the foreign worker leaves;
   4. there is no opportunity for the employer to train a Canadian or a permanent resident because the position requires specialized and/or proprietary knowledge to ensure the safe and efficient provision or operation of machinery or equipment.

If the employer can meet each of the above requirements then they may qualify for this variation to the minimum advertising requirements and can submit their LMIA application without needing to advertise or recruit for the position.

4. Specialized service technicians or service providers: Where employers need a foreign worker for a limited time because the work requires specialized or proprietary knowledge and experience, they may qualify for the specialized service technician or service provider LMIA advertising variation. This variation to the advertising requirements removes the requirement for the employer to advertise or recruit for the position prior to submitting their LMIA application.

To qualify for this advertising variation, employers must demonstrate:

1. 1. the work requires a specialist who has proprietary knowledge or experience related to the work;
   2. the duration of the work in Canada is limited; and
   3. there is no opportunity for Canadians or permanent residents to be trained.

As the name suggests, this advertising variation is primarily for foreign nationals who need to enter Canada to provide service on machinery or equipment in use in the country. Employers may avail themselves of this advertising variation in the following situations (although the examples are not an exhaustive list):

1. 1. service is required for equipment manufactured outside of Canada and the original equipment manufacturer does not have Canadian licensees that can do the work;
   2. the services that need to be performed require a worker that has proprietary knowledge, experience or tools from the original equipment manufacturer and this skillset is unavailable in Canada; or
   3. service is required for equipment that is so old that customized parts have to be manufactured or new parts reconfigured by an original equipment manufacturer approved technician.

5. Warranty work: While there are a number of pathways that employers and foreign nationals can consider when entering Canada to provide warranty work on equipment and machinery, including work permit exemptions and LMIA-exempt work permit options, there is also an LMIA advertising variation available. The variation to the minimum advertising requirements for warranty work waives the advertising and recruitment requirements for the LMIA application.

To qualify for this advertising exemption, employers must show that the work involves installation, inspection or repair of equipment and the terms of the warranty require the work to be completed by the equipment manufacturer’s designated skilled workers.

While the advertising variations discussed above do allow employers to limit the advertising and recruitment activities they must undertake in certain instances, it is important to understand that the LMIA application and subsequent work permit application(s) do take time to be processed. These processing times vary but can range from several weeks to several months. As such, it is important to plan ahead should a foreign worker need to come to Canada to work.

A final note is that when it comes to the actual work permit application (after the LMIA approval is received), certain workers may be able to apply for their work permit at the border on entry to Canada. This could help expedite the process of having a worker enter Canada.

Conclusion

The various variations to the minimum advertising requirements for LMIAs available to employers demonstrates the government’s understanding that not all positions can or will be filled by Canadian citizens or permanent residents. It is not only the duration of the work that needs to be completed, but also the nature of the work, the urgency of the work and industry of the work that help determine whether an employer can complete an LMIA application for a foreign national with an advertising variation. There are various other advertising variations available, but the options outlined above are the most widely applicable.

If you are interested in exploring the LMIA-based work permit as an avenue for immigration or to fill your local labour demands, please contact a member of our immigration team and we would be happy to assist.

This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact a member of our Immigration group.

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