5 Mistakes Employers Make When Filing LMIAsachkarlaw-admin
Over the last few years, Canada has faced a shortage of skilled workers, which was only made worse by the global COVID-19 pandemic. One common solution to this problem adopted by many businesses has been to hire temporary foreign workers (TFWs).
Many benefits come with hiring a TFW such as filling needed positions, diversity in your workplace, and the ability to connect with immigrant customers.
If you are an employer and are currently having trouble filling positions for your Canadian business, it is important to avoid the following pitfalls when filing a Labour Market Immigration Assessment (LMIA) in connection with hiring a TFW. These common mistakes can lead to the rejection of the application.
- Not determining if the employers meet the requirements to apply
A shortage of workers does not automatically qualify employers to apply for an LMIA. For an employer to be able to proceed with an LMIA, they need to make sure that they have NOT been found non-compliant as a result of an employer compliance review and have NOT been banned from the Temporary Foreign Worker Program due to a non-compliance that arose during an inspection and finally make sure they are NOT in default of an administrative monetary penalty. Once employers determine they are eligible to apply for an LMIA, they must provide proof that they can fulfill the terms of the job offer and provide proof of providing good service. For this, there is a list of documents that Employment and Social Development Canada (ESDC) provides so the employers can select which they are able to submit with their application.
- Miscalculating the median wage
Before offering the job to the TFW and applying for the LMIA, it is important to make sure that a search on the ESDC Job Bank is conducted to determine the median wage for the occupation and for the specific location where the TFW will be employed. The wage must ALWAYS meet or be above the median wage that is established, in the event that the median wage in your community or area is listed as N/A you are required to consult with the provincial or territorial wage, if this is not available you will have to consult with the national wage. Please keep in mind if you do not meet the median wage the application will be refused.
- Not providing all the required information in the ads and not posting them on the corresponding platforms
Once the employer determines they are eligible to apply for an LMIA, understands under what stream they will apply, and makes sure that the wage being offered meets the minimum criteria, they can proceed to recruitment, which means preparing the advertisement and posting it on the corresponding platforms. It is required to use Job Bank as one of the platforms to advertise the job, depending on the stream under which they are applying there will be a requirement to conduct either two or three additional methods of recruitment. It is extremely important to follow the guidelines that have been established by ESDC which indicate all the information that must be provided in the ad. When the employer has all the information required for the advertisement, they can proceed to post it on the corresponding platforms. The job advertisement should be running for at least four consecutive weeks within three months prior to submitting the LMIA application. Once the application is submitted at least one of the recruitment activities must be running until the date either a positive or negative LMIA is issued to the employer.
- Not using the correct form
There are different streams when it comes to filing an LMIA. Depending on which stream you apply under, the form varies, so it is important to understand that each form has its specific requirements, for example when we are in a high wage stream employers must present a transition plan which essentially is describing the activities the employer has engaged to recruit, retain and or train Canadian and permanent residents and reduce the reliance on the temporary foreign worker. When it is a low wage stream employers are subject to a 20% or 30% cap limit on the number of TFWs they can hire. The cap percentage varies depending on the field of employment, this is put in place to ensure that Canadians and permanent residents are considered first for the jobs that become available. In situations when an employer is hiring a TFW in a higher skilled position that falls under a skill type 0, A, or B under the National Occupational Classification (NOC) they will be required to fill a different form in which they will support the TFW’s permanent residency, in this category they will be exempt from providing a transition plan or be subject to the above-mentioned caps.
- Not submitting the application with the corresponding platform or processing centre
Once all the information is gathered, the advertisements have been running for 4 consecutive weeks, we are finally ready to submit the application. This stage might seem quite simple, but it only takes one mistake to jeopardize your entire application. As of now, Service Canada accepts the following methods to submit your application:
- Most recommended is using the LMIA online portal, for this either the employer or the third-party representative must have a valid job bank user account
- Applications until further notice can continue to be submitted to any of the ESDC processing centres via email. It is important to determine which processing centre corresponds to the application you are submitting.
It is extremely important to highlight that in the event that an application is submitted incomplete, or to the wrong processing centre (if submitted via email) the application will be returned as incomplete. This means, that you will need to correct the mistake made and re-submit the application as a new one. This could result in delays in the start date for the TFW.
When applying for an LMIA, Employment and Social Development Canada will assess the impact of hiring a TFW, if a positive LMIA is issued this will indicate that there was no Canadian or permanent resident with the necessary skills to fill the position. Getting to this positive outcome requires the employer to determine if they are eligible to apply, offer the appropriate wage, follow the recruitment procedures, fill out the form that corresponds to the stream they are applying under and submit the application with the corresponding platforms or processing centre.
If you have any questions about how to hire a temporary foreign worker or how to submit an LMIA application our team of experienced employment lawyers at Achkar Law can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected], and we will be happy to assist.