Publication
Navigating the Global Talent Stream Labour Market Impact Assessment (LMIA)
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June 28, 2019
By Sarah McInnes, Partner at McInnes Cooper,
Meghan Felt, Partner at McInnes Cooper
The Global Talent Stream is set to become a permanent member of Canada’s temporary foreign worker program (TFWP) fleet. A central pillar of Canada’s Global Skills Strategy, the Global Talent Stream was initially launched as a two year pilot and has proven exceptionally useful for employers seeking to bring foreign skilled and specialized talent to Canada more quickly and efficiently than ever before. The timing couldn’t have been better: Canadian employers have been able to use the Global Talent Stream to leverage the currently restrictive immigration policies of the U.S. to attract international talent to Canada. And in its 2019 Budget, the federal government announced it plans to make the Global Talent Stream permanent.
Here are three key reasons employers are on board with the Global Talent Stream, a guide for employers navigating the Global Talent Stream Labour Market Impact Assessment (LMIA) process, and five tips and best practices to help employers do so.
3 Key Global Talent Stream Benefits
The Global Talent Stream is a Temporary Foreign Worker Program (TFWP): as under any TFWP, to hire a temporary foreign worker under the Global Talent Stream an employer must first obtain the federal government’s approval in the form of a Labour Market Impact Assessment (LMIA). Applying for and obtaining a LMIA is a critical step in hiring a temporary foreign worker(s), but it can be a time-consuming, costly and uncertain process. Here are three key ways in which the Global Talent Stream LMIA process is different, and why Canadian employers are on board with the Global Talent Stream to hire temporary foreign workers.
Super service standards. Employment & Social Development Canada (ESDC), the federal department responsible to process all LMIAs under all TFWP programs, has delivered consistent, responsive and fast service to employer applicants for Global Talent Stream LMIAs allowing them to bring specialized talent to Canada in a far timelier manner than in the past. A new team of ESDC officers dedicated to the Global Talent Stream is helpful, responsive and accommodating when working with employers to develop the Labour Market Benefits Plan employers must develop as part of the Global Talent Stream LMIA process. ESDC committed to a service standard of processing Global Talent Stream LMIAs in 10 business days, 80% of the time, and has adhered closely to this standard, giving employers predictability, consistency and efficiency. And once an employer has received a positive Global Talent Stream LMIA, the foreign worker applicants are also eligible to have Immigration, Refugees and Citizenship Canada (IRCC) process their work permits in 10 business days, 80% of the time (though they must apply online from outside of Canada).
Reduced Canadian recruitment requirement. Employers applying for a Global Talent Stream LMIA are encouraged to recruit Canadians and permanent residents and will be asked about their recruitment efforts on the Global Talent Stream LMIA application form – but they aren’t absolutely required to do as a Global Talent Stream LMIA prerequisite. Employers applying for a regular LMIA to hire a temporary foreign worker must typically demonstrate a lack of Canadians or permanent residents for the position, and are required to undertake detailed efforts to recruit Canadians and permanent residents, that, with few exceptions, includes satisfying arduous and expensive minimum advertising requirements.
More flexibility. The Global Talent Stream LMIA offers employers greater flexibility than a non-Global Talent Stream LMIA. One key difference is the ability for employers, using a separate Annex 1 unique to the Global Talent Stream LMIA application, to hire multiple temporary foreign workers for different occupations and at different wages under a single Global Talent Stream LMIA. While employers can also hire multiple temporary foreign workers under a non-Global Talent Stream LMIA, they can only do so for the same occupation and at the same wages; they must apply for and obtain an entirely new LMIA to hire temporary foreign workers for different occupations or for different wages. Another key difference is the ability for employers, as long as the National Occupation Code (NOC) and job duties don’t change, to increase the wages paid to temporary foreign workers whose work permit was issued under a positive Global Talent Stream LMIA . Employers can’t increase wages under a regular LMIA (they must apply for a new LMIA).This difference is likely to recognize that competitive wage increases are necessary to retain high-skilled international talent.
The Global Talent Stream LMIA Process
For employers interested in the Global Talent Stream as a route to hire temporary foreign workers, here’s a guide to navigating the Global Talent Stream Labour Market Impact Assessment (LMIA) process.
Select the Category. There are two categories of Global Talent Stream LMIAs, each targeted to different employee needs.
- Category A: Unique & Specialized Talent. Category A targets employers that need unique and specialized foreign nationals in order to grow and compete on an international level. ESDC will only accept an application for a Category A Global Talent Stream LMIA from an employer that a “designated referral partner” refers to ESDC. There are currently between 30 and 40 designated referral partners, many of which are government agencies, across Canada, responsible to refer innovative Canadian companies requiring “unique and specialized talent” to ESDC for a Category A Global Talent Stream LMIA. In making the referral, ESDC expects designated referral partners to consider criteria such as the employer applicant’s revenue, recent growth, and whether it’s in a high-growth sector or offers innovative products or services. Category A is very narrow: ESDC will only consider a foreign national to have “unique and specialized talent” if they have: advanced industry knowledge; an advanced degree and/or five years of experience in a specialized field; and a notable salary (more than $80,000). Only few individuals will be qualified for such positions, so except in very exceptional circumstances, employers will likely only be approved for one, or possibly two, Category A referrals.
- Category B: Global Talent Occupations List. Category B targets employers that need to fill an in-demand highly-skilled position listed on the Global Talent Occupations List. ESDC will accept an application for a Category B Global Talent Stream LMIA directly from an employer seeking to hire highly skilled foreign workers for listed occupations, which the federal government has determined to be in-demand and for which there is insufficient domestic labour supply. The positions are primarily information systems and technology based, as well as architecture and engineering managers.
Determine the Wages. Employers must pay temporary foreign workers hired under the Global Talent Stream the highest of these three wages:
- For a Category A LMIA, for the first position requested an annual salary of at least $80,000, or an annual salary equivalent to the prevailing wage for that occupation if it’s higher than $80,000; for any additional positions, an annual salary of at least $150,000, or an annual salary equivalent to the prevailing wage for that occupation if it’s higher than $150,000. For a Category B LMIA, the applicable minimum wage for the occupation as identified in the Global Talent Occupations List.
- The wage that’s within the wage range that an employer is paying its current employees hired for the same job and work location, and with the same skills and years of experience.
- The median wage on the Job Bank.
Employers should review wages annually to ensure foreign workers continue to receive the prevailing wage for the occupation and region where they are employed and adjust as necessary. And it’s vital that an employer that increases a temporary foreign workers’ wages (as permitted under the Global Talent Stream) notify ESDC so the ESDC officer can make a note on the employer’s file to reflect the wage increase; if not, the employer risks an ESDC determination of non-compliance – and the non-compliance consequences.
Develop the Labour Market Benefits Plan. Employers seeking a Global Talent Stream LMIA under either Category must develop a “Labour Market Benefits Plan” detailing their commitments to activities that will positively impact the Canadian labour market through job creation, skills investments and training. Employers can create a Benefits Plan based on the number of positions they anticipate they will request over a one-year period, avoiding the need to update the Benefits Plan each time they submit a new Global Talent Stream LMIA application. The Benefits Plan must include the employer’s commitment to both “mandatory” and “complementary” benefits.
- Mandatory benefits. Employers seeking a Category A Global Talent Stream LMIA must commit to creating jobs for Canadians and permanent residents. Those seeking a Category B Global Talent Stream LMIA must commit to increase skills and training investments for Canadians and permanent residents.
- Complementary benefits. All employers must also commit to at least two complementary benefits with at least one activity for each benefit. As set out in the Global Talent Stream Program requirements, complementary benefits could include (but aren’t limited to) job creation, investment in skills and training, transferring knowledge to Canadians and permanent residents, enhanced company performance and implementing best practices or policies.
It’s important that employers understand that the Benefits Plan commitments involve detailed human resource practices and must be very specific. For example:
- The employer’s commitment to increasing skills and training investments must provide dollar amounts and timelines.
- An employer may commit to funding a certain number of its Canadian and permanent resident employees to attend a professional development conference annually, and must provide an estimate of the cost of this activity.
- An employer that commits to creating jobs must provide an estimate of the number of jobs it will provide for Canadians or permanent residents over a certain period.
Practically, while employers can complete and submit the Labour Market Benefits Plan with their Global Talent Stream Application, they can also do so without it. ESDC will work with employers to complete the Benefits Plan during the LMIA application process. Once ESDC has accepted the Global Talent Stream LMIA application as complete, it will assign the application to an ESDC officer who will schedule a call (to which the employer’s legal counsel is invited) with the employer to discuss the Benefits Plan. The officer will then collaborate with the employer to design a Benefits Plan that both meets the Global Talent Stream requirements and is achievable by the employer.
Make the LMIA Application. As part of an employer’s application for a Global Talent Stream LMIA, the employer must submit:
- A completed Global Talent Stream application form (EMP5624).
- A completed Annex 1 – Additional occupation – Global Talent Stream (EMP5625), if it applies.
- Proof of business legitimacy, similar to that required for all LMIA applications under a TFWP.
- The processing fee (currently CDN$1,000).
The employer can submit its LMIA application online via the Data Gateway web portal, only available for GTS applications, or via fax or mail. If the LMIA application is for a position in the Province of Quebec, the employer must simultaneously submit the application to the Government of Quebec for a full assessment, and should consult Quebec’s Ministry of Immigration, Diversity and Inclusion website for further information on supporting documents, fees and other requirements.
Prepare for Annual Progress Reviews & Ongoing Compliance. Once the employer receives a Global Talent Stream LMIA and hires the temporary foreign worker based on it, ESDC will conduct annual progress reviews with the employer to review and evaluate its performance against its commitments in its Benefits Plan. During these annual reviews, ESDC might ask the employer to provide an update on its Benefits Plan commitments to date or to amend or expand them to reflect additional temporary foreign worker positions. And because the Global Talent Stream is a Temporary Foreign Worker Program (TFWP), an employer with an approved Global Talent Stream LMIA must also continue to meet all TFWP compliance requirements, including retention of all documents used to support their LMIA application for a minimum of six years beginning on the foreign worker’s first day of work.
5 Key Employer Tips & Best Practices
Here are five key tips and best practices to help employers jumping into the Global Talent Stream.
Double check the fit. Before wading in, first consider all the available routes to hire temporary foreign workers and confirm the Global Talent Stream is the best fit for your needs. For example, while the Global Talent Stream LMIA process is faster than a regular LMIA, it also requires greater commitment from employers in the form of the Labour Market Benefits Plan.
Think inside the box. When identifying commitments to make in the Benefits Plan, think about the activities and practices you’re already carrying out that benefit the Canadian labour market; it could be a matter of simply outlining these ongoing practices in the form of the Benefits Plan.
Under-promise & over-deliver. When making your Benefits Plan commitments, modesty is the best policy: it’s better to exceed the commitments than to fail to meet them. For example, even if you’re on a hiring spree, you can still commit to fewer hires in the Labour Benefits Plan than you intend, giving you a bit of wiggle room if things change.
Front-load the Global Talent Stream work permit application. Once ESDC has granted the employer’s Global Talent Stream LMIA, the temporary foreign worker applying for the work permit based on that LMIA should provide all documents, including required medicals for designated countries, police certificates (if required) and the biometrics payment, upfront with their work permit application to benefit from the Global Talent Stream’s 10 business days’ processing time.
Document, document, document. The Global Talent Stream creates a long-term relationship with ESDC. To ensure you continue to meet the compliance requirements to access the Global Talent Stream, diligently document your efforts to achieve the Benefits Plan commitments during the year so you’re prepared for the annual progress review.
Please contact your McInnes Cooper lawyer or any member of the Immigration Law Team @ McInnes Cooper to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
© McInnes Cooper, 2019. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.
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