lmia overview - Canadian Association of Professional Immigration

Welcome
Our Sponsors:
LMIA Overview
John Burke
March 26th, 2015
LMIA OVERVIEW
When:
The Basics
The Basics
The Basics
When:
No suitable LMIA exemption
The Basics
When:
No suitable LMIA
(Lastexemption
Resort)
When:
No suitable LMIA
exemption
(Last
Resort)
No suitable LMIA exemption
(Last Resort)
Impacts:
TFWP – Work Permit
Impacts:
TFWP – Work Permit
(Last Resort)
Impacts:
TFWP – Work Permit
APR – Express Entry
Constitutes “Valid Offer of
Constitutes “Valid Offer of
Constitutes “Valid Offer of
Impacts:
TFWP – Work Permit
– Express
Entry
Employment”APR
for all
categories
APR
–
Express
Entry
Employment”
forCEC,
all categories
FSW,
FSTW
Employment”
forCEC,
all categories
FSW,
FSTW
FSW, CEC, FSTW
APR – Express Entry
Constitutes “Valid Offer of
Employment” for all categories
FSW, CEC, FSTW
LMIA OVERVIEW
Who:
The Basics
The Basics
The Basics
Employer driven process
When:
When:
When:
No suitable LMIA exemption
No suitable LMIA
(Lastexemption
Resort)
No suitable LMIA
(Lastexemption
Resort)
(Last Resort)
Impacts:
TFWP – Work Permit
Impacts:
TFWP – Work Permit
Impacts:
TFWP – Work Permit
APR – Express Entry
– Express
Entry
Employment”APR
for all
categories
APR
–
Express
Entry
Employment”
forCEC,
all categories
FSW,
FSTW
Employment”
forCEC,
all categories
FSW,
FSTW
FSW, CEC, FSTW
SC to determine Positive,
Neutral or Negative impact on
Labour Market
Constitutes “Valid Offer of
Constitutes “Valid Offer of
Constitutes “Valid Offer of
TFW not important in LMIA
application
LMIA OVERVIEW
Steps:
Advertise position
The Basics
Steps:
position position
Steps:Advertise
Advertise
The Basics
Minimum
4 weeks
When:
No -suitable
LMIA
exemption
Minimum
4 weeks
The
Basics
Minimum
4 weeks
When:
No suitable LMIA
exemption
- Job Bank mandatory & ad
must
be active
(Last
Resort)
- Job Bank- mandatory
&
ad
must
be
active
When:
No suitable
LMIA
exemption
Job Bank
mandatory & ad
must
be active
throughout
adjudication
(Lastprocess
Resort)
throughout
adjudication
process
throughout
adjudication
process
(Last
Resort)
- 2 or more additional
Impacts:
TFWP – Work Permit
- 2 or more- 2additional
or more additional
methods of recruitment
consistentTFWP
with the
normal
Impacts:
– Work
Permit
methods of
recruitment
consistent
with the normal
methods
of recruitment
consistent
with
the
normal
practice for
the –occupation
Impacts:
TFWP
Work
Permit
practice for
the
APRoccupation
–for
Express
Entry
practice
the occupation
Steps:
Advertise position
- Minimum 4 weeks
- Job Bank mandatory & ad
must be active throughout
adjudication process
- 2 or more additional
methods of recruitment
consistent with the normal
practice for the occupation
Constitutes “Valid Offer of
Constitutes “Valid Offer of
Constitutes “Valid Offer of
– Express
Entry
Employment”APR
for all
categories
APR
–
Express
Entry
Employment”
forCEC,
all categories
FSW,
FSTW
Employment”
forCEC,
all categories
FSW,
FSTW
FSW, CEC, FSTW
LMIA OVERVIEW
- one of 2 additional methods must be national
in scope
- print media
- general employment websites
- specialized websites dedicated to
specific occupation profiles
- 4 weeks starts from first day ad
appears & is accessible to the
general public.
LMIA OVERVIEW
Complete Application Forms as necessary:
EMP5517 - Application Form
EMP5575 – Appointment of Third Party
Representative (Sch. A)
EMP5578 – Impact on Canadian
Labour Market (Sch. B)
EMP5594 – Employer Transition Plan
(Sch. C)
EMP5597 – Establishing Cap on Low
Wage Workers (Sch. E)
LMIA OVERVIEW
Gather and include all relevant
documentation required for a
“complete” application:
- See list in application form;
currently page 11
Determine Fee Payment Method
Submit application package by mail or
by fax to appropriate SC office
LMIA OVERVIEW
Labour Force Division:
High Skill vs. Low Skill
(0, A, or B = High; C or D = Low)
High Wage vs. Low Wage
(Above provincial median = High)
(Below provincial median = Low)
Transition to Canadian Workforce:
Low Wage = Cap on %age of LW
Workers- now 30%, 20% July 2015,
10% July, 2016
LMIA OVERVIEW
High Wage = Transition Plan
(Detailed plan as to how you will
transition workforce to CDN/PR
workers)
Two options:
Continuation & expansion of efforts
to recruit/train Cdn/PR workers
Support efforts of TFW to become
a Permanent Resident
Questions and Answers
11
LMIA: The Ontario Perspective
Inside Service Canada
Chris Daw
March 26th, 2015
Overview
 Using ATIP to look inside Service Canada –IMMe Centre
 Complete vs. Incomplete Applications
 Officer Assessment Guide
Advertising
Audiences
Labour Market Shortages
 Tidbits of interest
Record of Employment Assessments
Correct Employer “Operating As”
Some Context
 Speed of change an issue at Service Canada
 FWS = Foreign Worker System
 BEA = Business Enterprise Advisors
 NTF = Notes To File
 Electronic application processing
Complete vs Incomplete Applications
Complete vs Incomplete Applications
Officer Assessment
Completeness &
Process
IRPR 200 (5)
Genuineness
IRPR 203 (3)
7 Labour Market Factors
Officer Assessment – Some Details
Two Additional Sources of Advertising:
• Commercial Employment Sites
• Social Media
• Online Classifieds
• Associations or Occupation / Sector targeted websites
Labour Market Information Sources
Records of Employment
Correct Employer Name
 According to internal memos, major issue on franchise LMIA
requests
Questions and Answers
21
Dealing with Service Canada - The
Reality
March 26, 2014
Marko Vitorovich
 RCIC AND CAPIC MEMBER
 25 years experience specializing in a variety of immigration matters
 Has appeared before all 4 divisions of the IRB
 Extensive experience in drafting and researching all matters related to immigration law
 Expert in dealing with challenging, complex and difficult immigration matters on behalf of clients
including LMIAs!
 Previously worked with Citizenship and Immigration before entering private practice
 Works with Lee and Company
The Reality (let’s start at the beginning!)
Meeting with the Employer: The Reality
Who is the client? The reality is you may be contacted by the prospective
worker first.
Remember in the LMIA process, the employer MUST be your client (very
important in terms of
Professional obligations and credibility of the job offer)
If the employer has not real need or intent, and not motivated, the LMIA
application will not succeed.
What are The REAL Facts and Understanding to Share with the employer once
retained?
Lets find out……
A Realistic Understanding with the employer
Advise the employer of costs beyond the retainer (ads, processing fees etc)
Ensuring YOU as counsel, understand the employers needs and his business – Assess
if a real need (Consider previous efforts to find employers and any other refusals of
LMO/LMIA)
The employer knows the industry better than you – He’ll know if there are union guys
and why they may or may not meet the employer’s needs. Get the details.
Find the appropriate NOC code with the employer and make sure he is willing and
ABLE to pay the wages required. Advise him the wage rate may increase and he has to
be willing to meet that.
Advise the employer the realistic time frames. (I’m sorry we can’t get him here by
tomorrow!)
The Employer’s Reality continued….
Is the employer willing and able to provide all the documents that are requested.
Advise him that Service Canada is very inflexible and if the employer cannot
support the facts, the LMIA will be refused.
Sit with the employer and go through the posted requirements and make sure
the business is able to comply – again essential in terms of paying the wages!
If the employer has done the process before, access the information so we are
aware of what has been provided and done.
Advise the employer, that although you are counsel, Service Canada (SC) will do
most of the communication through the employer (at least initially)
Those Darn Ads – The Reality
Ads are a key component and the start of the process
Print out the POSTED guidelines on that day you start posting ads
Follow instructions meticulously
You must define the position both realistically and to truly reflect the
employers’ needs (skills, experience and training) and keep in Service
Canada’s guidelines (wages!!)
“I need a good cook” – That’ s not going to work!
Must run ads are run in appropriate places to reach all groups –
including job bank, 2 other sources of advertising consistent with the
occupation including national scope ad (newspaper, reputable web
based employment sites and other industry resources) – ads must run
minimum of 4 weeks from the time ad posted and be accessible to
general public
The “Ad” Reality/Job bank Reality!
Keep copies of all ads run (newspaper, online, and other)
You need a form PD7A from the employer to post an ad on the job bank
Oh the job bank!! - The advertisement must remain posted to actively seek qualified
Canadians and permanent residents until the date a labour market opinion is issued
Job bank ads must run continuously. Must ensure you check to ensure the ad is up
and active. Job bank ads only run for a certain period of time and decisions on
applications can take longer.
You may have to post the job bank ad a 2nd time (duplicate) to ensure continuous
“running”.
Sometimes SC has issues with duplicate ads, so you will have to explain why the 2 nd
one . This issue comes up when you are representing a large corporate entity who may
have hired 2 counsel to deal with separate LMIA applications
Your advertised wage in February may not meet the current wage in April, when the
decision is being made. Make sure your employer is willing to increase the wage.
The “Reality” Chart or Recruitment Report
Have a chart and clarify in your submission why those persons do not meet the
requirements
Those who may appear to meet the posted requirements, may have to be interviewed.
The employer should keep interview records and there be a clear explanation in the
chart and submission as to why the employer wasn’t satisfied. Explain carefully.
Keep all information on Permanent residents and Canadian citizens handy, who are
applying for the same position
It is not always clear in terms of those who are applying if they are permanent
residents or Canadian citizens
The Reality while Submitting!
 Don’t miss ONE Box when completing the LMIA forms. File will be destroyed otherwise
 Clearly put N/A for boxes not applicable.
 Sometimes SC will hold and ask for more info, but this is becoming more seldom and time
frames for compliance are very short. They will DESTROY if you or the employer not
comply
 This is not a time to go green –PHOTOCOPY EVERYTHING you send out– keep a scanned
and paper copy!
 Include all requested documents and proof of advertising
 Make SURE the employer is aware of everything on the forms, as SC will call them to verify
 Prepare your employer client. Tell them to take notes of the conversation. The CALL….
THE CALL
Questions your employer client may be asked
How can you afford to pay the temporary foreign worker (TFW)?
Have you tried to fill the position?
How will the TFW help with job creation for Canadian citizens and permanent
residents?
How will the TFW help with the transfer of skills?
What is your training plan?
Why do you need someone with training skills/skills/experience of the proposed
TFW?
Cant you promote some one within your company?
How many Canadians did you interview? Why weren’t they qualified?
What other questions do you think may be asked?
Address all these issues in your submission even prior to the call.
Keeping Calm…..
Advise the client to maintain composure and professionalism – be calm and measured
in tone
 Warn your employer client that SC officer may appear rude and abrupt
Have a practice call with your client and run through some of the questions
Be sure your client has a copy of the LMIA report, your submission, and any other
material ready at all times
If your client is unable to answer a question or provide more in depth information, the
employer should be sure to ask for an opportunity to obtain the information and
forward in a timely manner.
“I’m sorry Mr. Jones, my company accountant has that very detailed information. It
wasn’t asked for previously so I will obtain and forward to by tomorrow morning at 10
am.”
“Mr. Jones, thank you for your time. Do you require any further from me (the
employer).”
Tell your client to end the call on a cordial note and inquire if anything else is needed
and when a decision may be rendered. They should immediately write down the
conversation and inform you.
Communication and Advocacy with Service Canada
Advocating for procedural fairness is observed in the best interest of
your client
The approach should be courteous, professional and arguments based
on law, fact, and policy
Most advocacy is in the written form but not always
Written form can cut down on miscommunication – more clear
Keep communication on point, polite, and professional. Use the facts,
policy, law and not emotion
In terms of SC the decisions are almost policy driven so making
arguments based on policy, will ensure a higher chance of success
If applicable, use sections if the Act and regulations and other
jurisprudence – not personal opinion or emotion.
Even if you do not get what you want, it sets up a record for a potential judicial
review or a review by “higher ups”
Often correspondence or phone calls are directed to the client, therefore client
should be advised to contact counsel promptly
Your conversation with SC should be professional and courteous
Think carefully about what you want to say (Swear only in your mind!)
If the call is pre-arranged make notes of what you want to say
Take notes. Be sure you and your client obtain the name of the officer you are
dealing with.
Supervisor/Manager Review
Request only when appropriate. The reality is it almost never happens anymore
Doing too often diminishes credibility of requests
Must have excellent reason and foundation to request (keeping in mind that
policy is not always correct in law)
Keep all the points in mind when communicating with the manager
Again keep proper records in case you go to Federal Court
Keep arguments on posted policy or if strong legal/factual argument against
posted policy or the manner in which implement
My experience –I do not request for reviews if not based on above grounds
Its about “establishing” a record and a way to send “shingles’ up the ladder that
policy needs addressing
Policy can change down the line after polished professional arguments are put
forth. We may not be able to help the current client but we may change policy for
the next one!
Such reviews were much more successful and common before the new overall
“reality” put in place in July 2013
LMIA Refusals – An overview

Reality the LMIA process is grounded in the IRPR, specifically R. 203; therefore it is subject
to Judicial Review , as per S. 72(I) of the IRPA, which reads;
 Judicial Review; Application for judicial review (1) Judicial review by the Federal Court with
respect to any matter — a decision, determination or order made, a measure taken or a
question raised — under this Act is commenced by making an application for leave to the
Court.
 This is not always the right option, nor necessarily realistic
if package is destroyed for being incomplete - if you have copies of your complete
submission, it facilitates putting a new package together.
 if file is “incomplete”, this is something that can be easily addressed, ( i.e. typing N/A in
the relevant boxes) this is likely best option for employer, no need for new expenses
However, if package is refused, and this happens often a hard assessment of the options
has to be done;
Were the runs insufficient or too old? Any problems with the wages?
Documentation issues?
Is it an occupation where SC will not issue LMIAs
Is SC correct in their assessment? Can the refusal be addressed by
running new ads or looking at other options such as R 186, R 204, 205
Is Federal Court actually an option?
There really is no internal appeal process and no reconsideration! (not
like the old days)
My thoughts!
 Our company view is that SC is ‘like” a tribunal and should be governed by rules of natural
justice and procedural fairness
 Sliding scale of procedural fairness based on different administrative decision-making
process
 The REAL level of procedural fairness for the LMIA process seems to much lower than an
application for TRV – why is that?
 We believe the following are issues that should be challenged in Federal Court
*Right to counsel – SC should contact the employer to verify facts and bonafidness but
counsel should NOT be cut out of the loop
*Time frames are too short and allow insufficient time to provide requested information
*lack of consideration option when issues can easily be resolved - so the unreasonableness of
SC
*lack of transparency – manuals which exist but not posted. Guidelines change without
proper notice
*guidelines are NOT law – presently they are defacto law, due to them there is little
flexibility
*processing times are too long and create problems for the employer
Questions and Answers
39
The Panel – Lucy, John, Chris and Marko
The Practitioner View point
Lucy’s lavish lessons with SC
John’s jolly jokes with SC
Chris’ colossal tips with SC
Marko’s marvelous solutions with SC
Some stories, some tips, some venting, some sharing!
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