2. Program Requirements
Migration to the National Occupational Classification 2011
The Temporary Foreign Worker Program is migrating to the National Occupational Classification (NOC) 2011 in October 2016.
Employers must pay $1,000 for each position requested (e.g. $1,000 x number of positions=total payment) to cover the cost of processing a dual intent LMIA application.
The processing fee payment (in Canadian dollars) can be made by:
Federal Skilled Worker Program (FSWP)
The employer must be offering a job that is:
- certified cheque (payable to the Receiver General for Canada)
- money order (postal or bank)
- American Express
There will be no refund in the event of a negative LMIA, or if the application is withdrawn or cancelled by the employer since the fee covers the assessment process and not the outcome.
Employers requesting to have their LMIA application reconsidered, as a result of a negative LMIA, must submit a new application and processing fee for each position.
Refunds will only be available if a fee was collected in error (e.g. an incorrect fee amount was processed).
Employers must be aware that Employment and Social Development Canada (ESDC), has a policy that prohibits employers and third-party representatives from recovering the LMIA processing fee from foreign workers.
Note:The processing fee does not apply to employers choosing only to support a foreign national’s application for a permanent resident visa.
The LMIA processing fee does not apply to higher-skilled positions related to on-farm primary agriculture such as farm managers/supervisors and specialized livestock workers (specifically National Occupational Classification (NOC) codes 8251, 8252, 8253, 8254 and 8256).
A distinct language assessment factor has been introduced as subsection 203 (1.01) of the Immigration and Refugee Protection Regulations (IRPR). As a result, English and French are the only languages that can be identified as a job requirement both in LMIA applications and in job advertisements by employers, unless they can demonstrate that another language is essential for the job.
Education, training and experience
Employers are responsible for verifying that the foreign worker has all the necessary training, qualifications and experience to perform the work in Canada.
Employers hiring a foreign worker in regulated occupations in Canada must ensure that arrangements are made with the appropriate regulatory body for the certification, registration or licensing of the foreign worker. A “regulated” occupation is one where a professional or regulatory body has the authority to set entry requirements and standards of practice that lead to a certification or registration, or licence (e.g. skilled trade occupations with compulsory certification).
Securing the necessary documents to practice in Canada is the employer’s and the worker’s responsibility. For the purpose of issuing a work permit, Immigration, Refugees and Citizenship Canada (IRCC) must be satisfied that the skilled worker is capable of performing the employment being offered to them. IRCC will check to ensure the skilled worker holds the required certification, or licensing to practice in a regulated occupation in Canada. If the applicant is not certified or licensed, IRCC will assess whether the applicant is likely to qualify for certification when in Canada, before issuing a work permit.
In assessing a job offer for the purpose of issuing a permanent residence visa, IRCC must be satisfied that the skilled workers are able to perform and are likely to accept and carry out the employment being offered to them.
Business licence or documentation
All employers must submit a copy of the following documents:
- Job offer (signed by the employer and the foreign worker);
- Proof of recruitment (e.g. copy of advertisement and information to support where, when and for how long the position was advertised);
- Business registration or legal incorporation documents (if first LMIA application);
- Provincial/territorial/municipal business licence (where applicable and if first LMIA application);
- Canada Revenue Agency (CRA) documents, including:
- T4 Summary of Remuneration Paid (most current year ending)
- PD7A Statement of Account for current source deductions (for 12-month period preceding LMIA application)
- Schedules 100 and 125 – T2 Corporation Income Tax Return (for corporations only – 2 most recent returns filed)
- T2125 Statement of Business or Professional Activities (for sole proprietorships/partnerships only – 2 most recent returns filed)
- Commercial lease agreement (if applicable)
- Provincial documentation requirements:
- Alberta – Employment Agency Business Licence (Alberta’s Fair Trading Act), if applicable
- British Columbia – Employment Agency Licence (British Columbia’s Employment Standards Act), if applicable
- Manitoba – Certificate of Registration (Manitoba’s Worker Recruitment and Protection Act)
- Nova Scotia – Employer Registration Certificate (Labour Standards Code)
- Saskatchewan – Employer Registration Certificate (The Foreign Worker Recruitment and Immigration Services Act) (no documentation required, however employers must be registered).
Although it is not a mandatory requirement, if the position being filled by the foreign worker is unionized, it is recommended that employers:
- work actively with union representatives to recruit unemployed Canadians and permanent residents;
- consult the union on its position regarding the hiring of a foreign worker for the available job;
- confirm that the conditions of the collective agreement (e.g. wages, working conditions) will apply to the foreign worker.
- ESDC/Service Canada may contact the union for more information.
- The position offered to the foreign worker cannot affect current or foreseeable labour disputes at the workplace, or the employment of any Canadian or permanent resident workers involved in these disputes.
Third-party representatives and recruiters
Employers do not need to use the services of a third-party representative or recruiter to apply for a foreign worker. However, employers who choose to use the services of one of these individuals or organizations must pay for all of the fees associated with the service and meet all of the applicable requirements.
Representatives assist employers by providing services, such as:
- explaining and providing advice on the TFWP;
- completing and submitting the application form and all required documents;
- communicating with ESDC/Service Canada on the employer’s behalf; and
- representing the employer during the application process.
Employers who wish to use the services of a representative, paid or unpaid, must complete and submit Schedule A – Appointment of a Third-party Representative. Employers must identify their representative and not simply the firm/organization employing this person.
Individuals representing or assisting employers in exchange for compensation (e.g. money, goods or services) must be authorized under section 91 of the Immigration and Refugee Protection Act (IRPA), which means they have to be a member in good standing with:
- a Canadian provincial/territorial law society, or a student-at-law under its supervision;
- the Chambre des notaires du Québec;
- the Province of Ontario’s law society as a paralegal; or
- the Immigration Consultants of Canada Regulatory Council (ICCRC).
Employers should visit Immigration, Refugees and Citizenship Canada (IRCC) to verify that a specific representative is authorized to represent them or provide immigration advice.
Individuals representing employers for free (e.g. do not collect fees or other forms of compensation) are not subject to any restrictions under the IRPA. These individuals are usually family members, non-for-profit or religious organizations that assist employers who may not be able to complete the application process on their own.
Recruiters can assist employers by providing services such as:
- placing job advertisements for the recruitment of foreign workers;
- screening potential employees;
- making travel arrangements; and
- negotiating wages/salaries on behalf of the employer.
Employers, using the services of a paid recruiter to represent them during the LMIA application process, must complete the Third-party, Recruiter or Employer Agency Information section of the application form, as well as the separate Schedule A – Appointment of a Third-party Representative. The paid recruiter representing the employer must be a member of one of the groups authorized under section 91 of the IRPA.
If a paid representative is not authorized under the IRPA, ESDC/Service Canada will continue to process the application, but will communicate with the employer directly. However, a copy of a signed letter stating that the employer is no longer using the services of the original representative will be required before the employer can:
- hire another paid authorized representative; or
- work with an unpaid representative.
Employers who wish to appoint another representative must also submit a new Schedule A – Appointment of a Third-party Representative.
- reserves the right to contact employers directly when further information or documentation is required.
- will not mediate a dispute between an employer and a third-party representative nor communicate complaints to a regulatory body on an employer’s behalf. Employers who wish to file a formal complaint against their representative should contact the appropriate regulatory body (e.g. the provincial law society, the Chambre des notaires du Québec or the ICCR). For additional information on how to file a complaint, visit IRCC.