Major Changes to Make Labour Market Opinions More Difficult to Obtain
Since Mr. Jason Kenney became Minister of Employment and Social Development in July 2013, immigration law practitioners have been anticipating dramatic changes in the Labour Market Opinion (“LMO”) system administered by Service Canada. Those changes were revealed today.
Processing fees are now in effect: $275 per position. If you are a major employer with multiple positions in a single application, this could become quite costly.
New language restrictions in the Immigration and Refugee Protection Regulations are now in effect. The LMO application and recruitment advertisements must only indicate English or French as a job requirement; other language skills cannot be a requirement unless it is demonstrated to be essential to the job (ex: translators or language-specific tour guides).
Advertisement requirements will take more time and effort to meet as
- all advertisements must run for 4 weeks instead of 2 weeks;higher-skilled positions must be advertised in the national Job Bank/recognized provincial website, 1 method that covers a national scope, and 1 other method consistent with industry practices;
- lower-skilled positions must be advertised in the national Job Bank/recognized provincial website, and through 2 other methods.
- The advertising efforts must demonstrate an attempt to recruit from under-represented social groups.
This change in advertisement criteria is the only requirement that is effective: August 28, 2013.
Application Form Changes
*Please note, there are some limited exceptions, mainly relating to agricultural workers and Live-in Caregivers. Please speak to an immigration lawyer for how these general changes can affect you or your employees specifically.
Consequently, employers will need to pay more, spend more time waiting for a LMO and try harder to demonstrate that hiring a foreign worker will have a positive or neutral effect on the Canadian labor market. For employers, now is the time to reconsider your foreign worker plans, timelines, and long-term objectives. Securing permanent resident status for your most valuable foreign employees will be increasingly important as the time and financial costs of LMOs increase. Do not hesitate to contact Lowe & Company to discuss how these new changes will affect you or your business and how to overcome these hurdles today.
Introducing the new Alberta Work Experience Category
Posted July 4th, 2013
A few days ago, the Alberta Immigration Nominee Program (AINP) launched a new Alberta Work Experience category. Among other requirements, the general criteria include:
- Already residing in AB;
- Have a valid work permit;
- For those in a NOC 0,A, B skilled position, one requires 2 out of 3 years of full-time experience in an (or multiple) eligible occupation;
- For those in a NOC C entry-level position, one requires 3 out of 4 years of full-time experience in an (or multiple) eligible occupation;
- Meeting language requirements;
The major benefits for Alberta foreign workers for this permanent residence stream is that there is no requirement for employer nomination or proof of relevant education – both of which are required in other AINP streams. Some NOC C jobs also qualify. A real bonus is the more relaxed language requirements compared to the similar Canadian Experience Class program:
Language Testing Requirements: CEC vs. new Alberta Work Experience (AWE) Category
The drawbacks, however, are that the foreign worker must be in one of the eligible occupations, though this fortunately includes many areas such as Retail Trade Supervisors; Food Service Supervisors; Management Consultants; Banking, Insurance and Other Financial Clerks, etc.
Interested individuals need to act quickly as this program is expected to close November 28, 2013. We invite you to book a consultation with us today to see how this program may apply to you.
Language Requirements for Temporary Foreign Workers
Canada recognizes English and French as her official languages. Does a temporary foreign worker need to have either English or French language abilities to work in Canada?
In most situations, there are two requirements before a foreign national can work in Canada:
- The Canadian employer will need to obtain a Labour Market Opinion from Service Canada confirming that the employment of the foreign national will likely have a neutral or positive effect on the labor market in Canada;
- The foreign national will then need to obtain a work permit from Citizenship and Immigration Canada (“CIC”).
Labour Market Opinion
In the recent case of Construction and Specialized Worker’s Union, Local 1611 v Canada (Citizenship and Immigration) which was decided on May 21, 2013, the Applicants had argued that the Service Canada officer had fettered his discretion when there was no policy which would have allowed him to refuse the LMO based on the fact that Mandarin would be the predominant language used by the miners from China. Although the lack of requirement for English raised concerns for the officer regarding the employer’s ability to attract, train and transition to Canadian workers, his positive assessment was found by the Federal Court to be within the range of possible acceptable outcomes, and was not unreasonable.
Although the question of whether English or French is required for a temporary foreign worker was not framed directly in that case, one could glean from the decision that Service Canada did not have a policy of requiring English or French before a LMO would be issued. Indeed, the LMO application allowed employers to specify whether other languages were required in the position, and this was typically the case for ethnic restaurants looking for cooks who could not only prepare ethnic food, but could work in an environment that did not use English or French as the predominant language.
Unfortunately, the “mining” case created a lot of bad publicity for the federal government, and reforms were announced on April 29, 2013 which included identifying English and French as the only language that can be used as a job requirement. It will be interesting to see how Service Canada will assess applications by ethnic restaurants for example, and whether a policy will be written into the Temporary Foreign Worker Program Manual which is in the process of being updated by Service Canada.
When an application is made to CIC for a work permit, Regulation 200(3)(a) of the Immigration and Refugee Protection Regulations provides that an officer shall not issue a work permit to a foreign national if “there are reasonable grounds to believe that the foreign national is unable to perform the work sought”.
In the case of Minhas v Canada (Citizenship and Immigration) which was decided on July 3, 2009, an Indian national was selected in 2008 for a 2-year construction helper position in British Columbia. His application for a work permit was refused. Among the reasons recorded, the officer stated that:
“A basic level of English is a must for day to day living in Canada. A complete lack of English could also be a determent for the health and safety of the PA and others. It appears from the documents submitted, that the PA does not have any language ability.”
On the facts, the Federal Court found that there was no evidence before the officer addressing the applicant’s level of English language abilities. It was therefore not reasonable to conclude, based on his English language ability, that he could not perform the work of a construction helper.
On December 30, 2009, CIC released their Operational Bulletin 170 on Assessing Official Language Requirements for Temporary Foreign Workers. It was noted then that Service Canada did not assess a job’s language requirements, so when immigration officers assess requirements to perform the work sought, they should not limit their assessment to the requirements in the LMO.
Officers can consider the specific work conditions and any arrangements the employer has made or has undertaken to make to accommodate the applicant’s limited ability in English or French and to address potential safety concerns if any; and terms in the actual job offer, in addition to general requirements set out in the National Occupational Classification (NOC) description for the occupation. This is applied in assessing the extent to which weak official language skills could compromise the applicant’s “ability to perform the work sought” however, it is not appropriate for an officer to consider perceived challenges the applicant might face in interacting with the broader community, such as availing him/herself of community services, if this is not relevant to their job performance.
In determining what precise level of language requirement is necessary to perform the work sought, the officer can refer to:
- the LMO requirements;
- working conditions as described in the job offer; and
- NOC requirements for the specific occupation.
Is CIC in a better position to determine the foreign national’s language ability for the specific job than the employer or an interested third party?
Some provinces in Canada require foreign workers who are experienced tradespeople to obtain certification before being able to work in that province in Canada.
For example, a trades person from outside Canada wanting to work in a compulsory trade in Alberta has to apply to Alberta Apprenticeship and Industry Training (“AIT”) for certification under the Alberta Qualification Certificate Program.
Once the application has been submitted, AIT will verify the foreign national’s work experience in the trade and the Canadian employer’s requirements before deciding whether to approve the application. Upon approval, the foreign national will need to include AIT’s approval letter with his/her work permit application.
Within 180 days of arrival in Canada, the foreign national will need to pass theory and/or practical examinations (pass mark is 70 per cent) and attend any required training in order to maintain his/her foreign worker status in Canada.
With such rigorous screening processes, plus on-the-ground familiarity with trades and employer requirements in Alberta, it would make a strong case that AIT are in the best position to assess whether the foreign national is able to perform the work sought without disputing CIC’s authority to do so when assessing a work permit application.
What happens if my work permit application is refused?
In order to challenge a negative decision by CIC made outside Canada, the aggrieved party must apply for permission (“leave”) to seek judicial review of the decision within 60 days.
If leave is granted, a hearing will be conducted where the Federal Court will review the immigration officer’s decision to ascertain (in most situations), whether the officer’s decision was reasonable or not. If the applicant is successful, the Federal Court can then send the work permit application back to the visa office to be processed by a different officer.
Has your work permit application been refused notwithstanding that you were found to be qualified and able to perform the work sought? Call us today for a consultation as your right to apply to the Federal Court will extinguish after 60 days!”
Post CC: Lowe & Company, July 31, 2013
About the Author
Jeffrey S. Lowe has practiced law in BC since 1983. He is the founder and Chief Inspirational Officer of Lowe & Company, a boutique Immigration and Business Law firm, which has acted for clients from over 65 countries since 1990. He is considered an innovator in the convergence of Business, Technology and the Law. His blog is Lowe & Company: Immigration & Business Lawyers , and Jeffrey can be contacted at info@CanadaVisaLaw.com
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