March 29, 2016
Applying for and obtaining a Labour Market Impact Assessment (LMIA) is a critical step in hiring a temporary foreign worker(s). Employers applying for a LMIA must generally satisfy minimum advertising requirements, an arduous and expensive process. But there are two key exemptions to this requirement: employers that are owner/operators and those that are specialized service providers. There’s no legislative authority for these exemptions; they are provided for in a policy manual written by Employment and Social Development Canada (ESDC). All that’s currently available about these exemptions is vague information listed on the ESDC’s website, although the federal government has promised an updated owner/operator manual for some time. Until then, here are the two key exemptions and practical tips for employers to use them.
OWNER / OPERATOR EXEMPTION
Owner/operator employers are exempted from the LMIA’s minimum advertising requirements. This category is a great permanent residency option for Temporary Foreign Workers who are self-employed, but yet don’t meet the narrow and extensive requirements for “self-employed” applicants or for the Entrepreneurial/Investment streams that several provinces offer.
Application. The applicant’s submission letter will request an exemption to the minimum advertising requirements under the owner/operator category. While this is generally straight-forward, several aspects of this exemption category are unclear.
Required Documents. Applicants must provide the supporting documentation required for a typical LMIA application, including incorporation and tax documentation, proof that the company is actively engaged in business and a job description and copy of the owner/operator’s resume. In addition, however, the applicant employer’s business plan must essentially address the role of the owner/operator in the business and the kind of jobs that will be created or preserved in the Canadian labour market in addition to the conventional aspects of a business plan, such as the business objectives and financial targets. A copy of the employer’s business plan and a letter from an accountant can be helpful. In particular, the additional documents supporting the LMIA application must demonstrate:
Transition Plan. Generally, ESDC requires the employer to commit to a transition plan before approving the hiring of a foreign worker, including for owner/operator LMIA applications. But there are cases in which ESDC will waive the transition plan requirement. In most cases, a transition plan will be provided in support of the owner/operator’s application for permanent residency; however, the applicant can request ESDC waive the transition plan requirement where the owner/operator will be in Canada for a short period of time and will be returning to her home country once she completes her duties.
SPECIALIZED SERVICE TECHNICIANS / SERVICE PROVIDERS EXEMPTION
An employer is also exempt from the LMIA advertising requirements when the work the Temporary Foreign Worker will perform requires a specialist with proprietary knowledge and/or experience related to that work, the duration of the work is limited and there is no opportunity for Canadians to be trained.
Application. The applicant’s submission letter will request an exemption to the minimum advertising requirements under the specialized service technicians/ service provider category. In its submissions, the employer should include descriptions of:
Required Documents. Again, an employer must provide the supporting documentation required for a typical LMIA application, including incorporation and tax documentation, proof that the company is actively engaged in business and a job description and copy of the employee’s resume. In addition, however, an employer should support its application in the specialized service technicians/ service providers category with a letter from the company or the employer to which the employee will be providing her services that includes:
Transition Plan. When an employer needs to hire a specialized service provider for a short period of time to perform a specific task or complete a specific project, as is often the case, the employer can ask ESDC to waive the transition plan requirement due to the short duration of the employee’s time in Canada.
Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Immigration Law Team 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.
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