National Magazine Blog
Field notes: Immigration law's LMIA nightmare
by: Kim Covert
Filed under “If you thought you were having a bad day.”
If you’re an immigration lawyer, then LMIA is a four-letter word.
LMIA stands for Labour Market Impact Assessment and it’s a key part of the Express Entry System which came into effect in January. Under the system, employers offer permanent jobs to foreign workers who can then immigrate to Canada as skilled workers.
At a session on the LMIA at the recent CBA National Immigration Law Conference, civil servants who administer the program acknowledged lawyers’ difficulties by saying, “At the end of the session we’ll have time for questions, and hopefully we’ll have answers – if not, we’ll have sympathy for your level of frustration.”
Employment and Social Development Canada and Citizenship and Immigration Canada are very serious about checking to ensure employers have looked for Canadian candidates, said Calgary immigration lawyer Keven Zemp, who chaired the session.
He notes one irritating bureaucratic pitfall comes with advertising – the online job bank automatically cancels ads after 30 days, and there is no automatic renewal, meaning there’s often a lag time between the cancellation and reposting. “You can be in breach if you don’t have continuous job bank postings,” he said. “There’s no way to avoid that problem.”
Panellist Chantal Arsenault, a Norton Rose associate, said lawyers dealing with employers have to “prepare everything over the top;” they must “not only meet expectations but surpass them to be successful.”
She pointed out a Charter issue with the LMIA – while it’s illegal to ask whether a prospective employee is a Canadian citizen, employers have to report how many applications they get from Canadian citizens in order to prove that they’ve made an attempt to fill a job within the country. “They have to ask a question that they are not allowed to ask,” Arsenault said.
Zemp suggests the process has led to increased antacid consumption among practitioners in his field.
“You need to sever yourself from your common sense at times,” he said. He talked about going through the LMIA process with one employer who had to add more and more information to the required documentation to answer questions asked by the inspector overseeing the application; by the time it was done it was dozens of pages long. A few months later when the same employer was hiring for the same position, Zemp, thinking he had the requirements sussed, gave the same package of information to a different inspector, who sent it back, telling him it was ridiculously long and unnecessarily detailed.
“Let your client know that it’s possible [to bring in a foreign worker] but that it will be aggravating,” Zemp says.
It is possible, yes. But time-consuming, and making it through the gauntlet is harrowing enough to be worthy of a celebration, Arsenault said to wry laughter from the audience.
“Whenever we get an LMIA (approved) we should just shout ‘We are the champions!’ and have a parade.”
The Temporary Foreign Worker Program (TFWP)
Review the Section's fact sheet Employing Foreign Workers in Canada: A need for transparency and predictability
CIC’s Express Entry Program is coming January 1, 2015.
See the Section's submissions Express Entry and Express Entry Ministerial Instructions - Section 5(1)(b) and review its crucial facts for Canadian employers and prospective immigrants.
More CBA Submissions
National Immigration Law Section Videos
The National Immigration Law Section developed a series of short videos to illustrate the complexity and potential risks that applicants may encounter when they engage the Canadian immigration system. These videos highlight the benefits of obtaining legal advice in advance of making an application and throughout the immigration process, and provide information about where and how to find qualified legal counsel.
To view the videos click here.
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