slqlfslargeIf an employer in Canada wishes to hire a foreign worker – a person who is not a Canadian citizen or a permanent resident (Temporary Foreign Worker or, TFW), the employer must first obtain a Labour Market Opinion (LMO) from the Ministry of Employment and Social Development, subject to some exemptions such as NAFTA.

The TFW program is an important tool for a Canadian employer to access skilled workers and to meet any labour shortages. Beginning April 2013, a number of measures have been taken to take out (1) Accelerated LMO, (2) removal of 15% less than prevailing wages, (3) increased compliance review and (4) increased regulation upon TFW. As of mid-May 2013, the Minister of Employment and Social Development commented, “TFW should be the last resort for any Canadian employer to seek employees.”

In 2012, there were more than 202,500 LMO issued, which is almost as many as permanent resident visas, which was 258,000. Considering that there are a number of work permits issued without LMO, it is completely possible that we had more foreign workers in 2012 than permanent residents entered into Canada. As of April 24 2014, an immediate moratorium on the Food Services Sector’s access to the TFW was given without any advance notice or consideration for those “pending” or waiting in processing.

In order for a Labour Market Opinion to be successful, the employer must meet three basic criteria: (1) the job offer must be real, genuine and bona fide in its necessity and functionality within the employer’s work environment; (2) the worker must be compensated equally as any Canadian worker in the same work environment would be; and (3) the employer must show adequate efforts to prove that they could not find eligible Canadian workers by advertising in at least three venues including the Job Bank for a period of 30 days to prove such efforts.

The basic criteria appear to be very simple, but it is much more complex and difficult because the employer also needs to show a “Transition Plan” – a plan for the employer to transfer skills or to cover labour shortage within one or two years during the TFW’s employment. In other words, the employer must be able to demonstrate that TFW is a temporary solution for the employer and that the employer has a plan to train a Canadian worker by TFW or be able to meet his labour shortage without using TFW as a permanent solution.

If possible, it is highly recommend for any employer to access TFW without obtaining LMO at this point because of the lengthy processing time (6 – 8 weeks in Ontario), strict requirements for advertisements, transition plan requirement and potential liability flowing from the compliance review AFTER TFW works for the employer, based on LMO.

If you have any individual questions or concerns, please contact our office for more customized consultation for your unique situation.  Please note that this posting is for general information only and is not to be considered binding or official legal counsel since situations will vary and can be complicated. The content in this post is current as of the day of entry. Due to the changing nature of Immigration law, the information in this entry may or may not still be applicable.

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