This article is designed to provide an overview of the procedure to obtain a Labour Market Opinion (LMO). Over the course of the past number of years Canada Immigration and Citizenship (CIC) has been emphasizing Canadian work experience as a basis to obtain or lead toward gaining permanent residence in Canada.
In concert with this new emphasis on Canadian work experience, the government has created various programs, most notably the Canadian Experience Class (CEC), which seeks to facilitate permanent residency for those who have obtained Canadian work experience in Canada. The government has recently eased the requirements under the CEC by reducing the required work experience to from two years to just one year in the preceding three years. The majority of the applicants under the CEC stream come to Canada pursuant to the Temporary Foreign Worker Program (“TFWP”) and obtained their employment pursuant to a LMO.
As well, the government has given added emphasis to arranged employment within the Federal Skilled Worker program by virtually guaranteeing permanent residency for applicants who are able to obtain arranged employment. Such applicants will require an LMO before an arranged employment can be accepted.
In order to facilitate the shift towards arranged employment based immigration, the government has developed a system to assess the needs of the marketplace to ensure that immigrants fill gaps in the marketplace. The centerpiece of this system is the Labour Market Opinion or LMO. arranged employment within both the FSW program as well as the CEC both require LMOs. The LMO has therefore become a critical component of both the TFWP and FSW programs.
Levine Associates lawyers are retained by both employers and employees to handle all the various LMO and immigration related applications necessary to facilitate immigration to Canada.
Employers must demonstrate the following when they apply for an LMO:
1. Efforts made to recruit Canadian citizens/permanent residents, willing and available for the position;
2. Consistency of the wage offered with the prevailing wage rate paid in the same occupation and location;
3. Compliance with working conditions of the applicable provincial labour market standards
4. Potential benefits, created by hiring a foreign worker (transfer of skills and knowledge, creation of new jobs etc.)
5. Assurance that the new position is not designed to outsource Canadian jobs. (new regulation)
The LMO process is complex and can be challenging for even the most experienced practitioner. However, the LMO process can be navigated successfully with a carefully drafted application and due diligence. Levine Associates has good success with LMOs because we take the time to tailor each application to the specific needs of our clients thus ensuring the highest chances of success. We understand what steps an employer must take to pass through the process and we ensure compliance that meets the regulatory requirements set by Immigration Canada. If there are problems we deal with them at the outset to ensure the application moves quickly and is not delayed by deficiencies.
The National Occupational Classification (“NOC”) compiled by HRSDC classifies occupations with a four-digit code according to skill type and skill level. There are four skill levels:
A – Occupations usually require university education (management occupations fall within this category);
B – Occupations usually require college education or apprenticeship training;
C – Occupations usually require secondary school and/or occupation-specific training;
D – On-the-job training is usually provided for occupations.
Worker Specific or Open LMO
An application for an LMO can be submitted once a specific foreign worker is identified. In addition an employer is also able to obtain pre-approval for a certain number of employees in a similar position (NOC Code) before the specific foreign workers are identified. Such an LMO is referred to as a blank or open LMO. By utilizing the blank LMO process, employers are able to begin the LMO process even before selecting the specific worker. Once HRSDC issues pre-approval, LMOs can be obtained as soon as a specific foreign workers is identified. This is especially effective when a company is looking to hire more than one individual. Industries such as construction and IT frequently utilize blank LMOs.
There are several different LMO applications depending on the skill level of the occupation. Higher skill level applications are submitted using form, EMP5517 as well as the newly introduced form EMP5578 Schedule B – Impact on the Canadian Labour Market designed to evaluate any potential outsourcing impact, which as its namesake indicates has been introduced as a result of recent amendments noted above.
A typical LMO application is accompanied by a detailed cover letter outlining the employer’s profile, the nature of the position and a recruitment summary as well as proof of recruitment. In addition to form 5517, all new employers are required to provide a copy of their business license or permit. Where a business license/permit is not required by the municipality/province, employers may instead submit:
• CRA documents: T4 Summary of Remuneration Paid, Schedules 100 and 125 of the T2 Corporation Income Tax Return, T2125 Statement of Business or Professional Activities;
• Business contracts for goods and/or services;
• Provincial/territorial workers compensation clearance letter or other provincial/territorial documentation indicating the employer is in good standing; and
• Attestation by a lawyer, notary public or chartered accountant confirming the employer exists and the type of business the employer operates.
• The application may also contain a proposed employment contract as well the resume of the foreign worker.
Note: An LMO application supporting a Federal Skilled Worker application requires additional documentation such as:
• A signed job offer;
• Canada Revenue Agency- PD7A Statement of Account for Current Source Deductions (for the 12-month period preceding the application);
• Commercial lease agreement (where applicable and only required for the first LMO application).
Evaluating the Application
The Application is received by HRSDC and is put in a queue. The application is then assigned to an Program and Service Delivery Clerk . The clerk screens the application to ensure it is complete. If the application is complete the officer reviews the application to determine compliance. The officer also evaluates whether the application is genuine by considering:
• whether the employer is actively engaged in the business in which the job offer is being made;
• the job offered to the TFW meets the reasonable employment needs of the employer, and is consistent with the type of business the employer is engaged in;
• the employer is reasonably able to fulfill the terms and conditions of the job offer; and
• whether the employer, or the third-party representative acting on behalf of the employer, is compliant with the relevant federal-provincial/territorial employment and recruitment legislation.
The officer typically contacts the employer and/or third party representative if the application is missing documents. Applicants or their representatives for the LMO must be readily available to answer questions as LMOs can be refused for failure to respond to inquiries in a timely manner. The officer may also contact the applicant to ascertain any additional details about the application before making the final decision.
Since July 31, 2013 employers are now required to pay $275 for every LMO application.
Processing times fluctuate depending on the number of applications submitted to HRSDC in any given period. In our experience processing times for LMO’s typically take less than seven weeks. Processing times can be cut by submitting the LMO electronically as opposed to mail or fax.