Could Your Temporary Foreign Workers be LMO Exempt?23-Aug-10
It is generally believed that temporary foreign workers require a positive Labour Market Opinion (LMO) from Service Canada prior to applying for a Work Permit from Citizenship and Immigration Canada (CIC) or their Port of Entry counterpart Canada Border Services Agency (CBSA). However, there are many exceptions to this rule, which may result in you saving time and money.
Canadian employers often apply directly for LMO’s to Service Canada to facilitate the entry of their prospective temporary foreign workers. What most don’t realize is that many temporary foreign workers are actually exempt from the LMO requirement. Employers are generally aware that exemptions exist, but don’t know what they are or understand the intricacies of satisfying CIC or CBSA so that they apply. In fact, almost half of the temporary foreign workers on work permits in Canada at any given time are LMO exempt!
What are the advantages of bringing in temporary foreign workers who are LMO exempt?
First, bringing in an LMO-exempt foreign worker is often much faster than applying for and then waiting for an LMO to be issued, which can take weeks or even months. Second, LMO applications are often refused. There are many cases in which employers are refused LMOs when the foreign worker or workers they are trying to bring in would have been exempt in the first place. Third, work permits issued to LMO exempt workers are often for terms far longer then those that require LMOs. Longer work permits not only reduce the frequency of applying for extensions, but also make it far easier to attract skilled workers who are looking for long term job security and stability for themselves and their families. These skilled workers often end-up immigrating to Canada and provide a career of excellent service to their Canadian employers.
It should be noted that Service Canada staff are labour market experts, not LMO exemption experts. They do not advise employers that their prospective temporary foreign workers may in fact be LMO exempt, or rule in that regard. It is up to CIC or CBSA to ascertain if an exemption applies; therefore, applications for exemptions must be made to them.
What are these exemptions?
Some exemptions are reserved for professionals from countries with which Canada has Free Trade Agreements in services. Others are for intra-company transferees who meet certain criteria with respect to corporate relationship, time worked for the foreign company, level of specialized or advanced knowledge or senior managerial/executive status within the organization. Still, other exemptions exist when the employer, or their representative, can satisfy CIC or CBSA that significant benefits would result for Canada or Canadians, such as job creation or retention for Canadian citizens or permanent residents, or transfer of valuable skills, knowledge, or technology. There are numerous other exemptions. They are often rather complex, and the onus lies on the employer or their legal representative to satisfy CIC or CBSA that an LMO exemption is justified. Remember, exemptions are exceptions to the rule.
McLennan Ross can provide you with advice and assistance on visa, immigration, and border issues and challenges.