LMIA Advertisement Requirements
Today we will be briefly discussing the LMIA Advertisement Requirements when submitting an LMIA Application including their minimum requirements and some of the common variations.
An employer who wants to hire a foreign national needs, in general, to apply for a Labour Market Impact Assessment (LMIA). LMIAs are assessed under the temporary foreign worker program. There are some exceptions to the LMIA requirement which is discussed here.
An LMIA is a document that confirms that there is a need to hire a foreign national. The document also confirms that no Canadian or Permanent resident is able to fill the position.
The document allows an Employer to hire a temporary foreign worker and allows the worker to apply for a work permit. The LMIA is a Job Offer.
It is important to determine what are the LMIA advertisement requirements based on the provincial or territorial requirements of the programs.
Employment Social Development Canada will usually want evidence of an Employer’s attempts or efforts to hire Canadians or Permanent Residents. In some case there is a variation to the advertisement requirement that applies as we will see below.
It is important to determine what are the LMIA Advertisement requirements based on the provincial or territorial requirements of the programs.
The application requirements depend on the type of program you are trying to hire the foreign national under.
In some cases there no requirement for the employer to demonstrate that the position was advertised.
Employers should be mindful of the National Occupation Classification (NOC) the position they are looking to fill falls under. A NOC is determined by looking at the duties and responsibilities and ensuring that they are consistent with the occupation.
This will allow an Employer to know what are the recruitment or advertising requirements for the position they intend to fill.
LMIA Advertisement requirements for a typical high-wage position
A high-wage position is defined as a position for which the salary offered is above the median hourly wage. The median hourly wage varies in each province and territory and can be found here. In the case of a high-wage position, the Employer must have conducted at least three recruitment activities.
One of these advertisements must be posted on the Government of Canada’s website called Job Bank. Employers might be exempt from having to use Job Bank in certain circumstances.
The advertisements must have occurred in the three months and running for four weeks prior to applying and for the LMIA.
For more information regarding the requirements click here.
LMIA Advertisement requirements for a typical low-wage position
A low-wage position is defined as a position for which the salary offered is below the median hourly wage. As mentioned above the median hourly wage varies in each province or territory. The Employer must demonstrate that it has conducted at least three recruitment activities.
One of these advertisements must be posted on the Government of Canada’s website called Job Bank. Employers might be exempt from having to use Job Bank in certain circumstances.
The advertisement must also target a different under represented group such as Indigenous persons, vulnerable youth, newcomers, and persons with disabilities
For more information regarding the requirements click here.
Variations in the LMIA advertisement requirements
1. Essential and critical Occupations for Canada – COVID-19 LMIA Advertisement Variations
Effective March 20, 2020, the Minimum recruitment requirements for the following positions have been waived until October 31, 2020.:
- 6331 – Butchers, meat cutters and fishmongers-retail and wholesale
- 7511 – Transport Truck Drivers
- 8252 – Agricultural service contractors, farm supervisors and specialized livestock workers
- 8431 – General Farm Workers
- 8432 – Nursery and Greenhouse Workers
- 8611 – Harvesting labourers
- 9463 – Fish and seafood plant workers
- 9617 – Labourers in food, beverage and associated products processing
- 9618 – Labourers in fish and seafood processing
- 9462 – Industrial butchers and meat cutters, poultry preparers and related workers
more information can be found by clicking here.
2. Owners/operators
Business Owners who are running a business in Canada are exempt from any LMIA advertisement requirement. This variation applies to all provinces and territories.
To qualify as an owner operator, foreign nationals must demonstrate the following:
- they have controlling interest in the business;
- they are the sole proprietor;
- they are a majority shareholder (hold a minimum of 50.1% of the shares);
- they have an official document to confirm that one shareholder has controlling interest;
- they cannot be dismissed
We have discussed the Owner/Operator LMIA here.
3. Entertainment sector
Individuals working in the Entertainment sector are exempt from any LMIA advertisement requirement. This variation applies to all provinces and territories.
These positions are for specific occupations in the entertainment sector. The worker is often time hired for a very limited time at a a specific location and on short notice. This is the case for boxers, DJ’s, singers, musicians, Film directors, Actors, Artists, etc.
4. Specialized service technicians/specialized service providers
Specialized service technicians/specialized service providers are exempt from any advertisement or recruitment requirement. This variation applies to all provinces and territories.
This variation is for positions requiring a specialist. The specialist must have proprietary knowledge and/or experience related to the work to be performed. The duration of the work is limited and there is no opportunity for Canadians to be trained.
5. Warranty work
There is no advertisement requirement when the work entails the following:
- the installation, inspection or repair of equipment, and
- the terms of the warranty require the work to be done by skilled workers designated by the manufacturer.
6. Seasonal Agricultural Workers Program (SAWP)
Employers who are hiring a replacement worker under the SAWP are not required to advertise again a position. This applies only if the position is the same occupation as the initial LMIA that was approved. It also has to remain in the same Job Bank economic region.
7. Academics
The position is for an academic who is not covered by any other applicable Labour Market Impact Assessment (LMIA) exemption.
The employer must conduct recruitment efforts as per the Hiring Foreign Academics in Canada Policy. However, Employers submitting subsequent LMIA applications for a university professor can be exempted from the recruitment and advertisement requirement. The position must be for a university professor in a tenure track position.
8. Air pilots, flight engineers and flying instructors
Employers hiring under the NOC 2271 must meet the minimum advertising requirements under the high-wage position. They must also specify the following criteria in their job postings:
- no more than a maximum of 4,000 flight hours for a First Officer. Also, 5,000 hours for a Captain as required experience
- possess a valid commercial pilots’ license
- require English and/or French language proficiency
- include industry-standard medical testing requirements for commercial flight
- state both the legal and common names of the airline operating in Canada
- not include as an essential or asset requirement the necessity of holding a type rating for a specific type of aircraft. Requiring applicants to have experience flying equipment that is similar in configuration and complexity to the airline’s fleet is acceptable
- indicate when training bonds will be applied and they must cover a minimum of 2 years employment
9. Collective bargaining agreement that stipulates internal recruitment
The position must be part of a collective bargaining agreement known as a CBA. The CBA must contain provisions for hiring/promoting through internal staffing processes.
This usually applies to cases where a TFW started employment on an original approved LMIA and work permit. However, based on an internal hiring process as stipulated by the CBA was promoted to a different occupation. In this case, a new LMIA and work permit would be required since the TFW was hired in a different occupation.
The internal posting for the position, as per the CBA, will suffice to satisfy minimum advertising requirements. Specifically, the employer must provide the internal posting of the opportunity for promotion. All members of the Collective Bargaining Unit must have had an opportunity to apply for the position.
An internal posting for a position can only be accepted as a minimum advertising requirement for positions covered by a CBA. Furthermore, it must be a CBA that stipulates internal recruitment. This does not extend to promotions granted in other scenarios.
10. Certificate of Selection from Quebec (Province of Quebec only)
Employers who intend to hire a foreign national who has been selected by Quebec may be exempt from advertising. The foreign national must have been issued a Certificate of Selection in Quebec (CSQ) as the first step toward permanent residency.
The job offer and the description of the position must be the same as the one found on the CSQ.
An LMIA may not be required if a CSQ has been issued and the worker resides in the province of Quebec.
For more information on LMIA exemptions in Quebec.
11. Camp counsellors (Province of Ontario only)
In the case where the position is for a camp counsellor who will be working in Ontario. The employer must provide documentation showing efforts to hire Canadian campers from the previous year and a commitment in writing.
In addition, the employer should commit to pursue spring recruitment campaigns in high schools and post-secondary institutions
12. Home Caregiver
This is rarer now seeing that the government has stopped processing new applications under this program. For more information click here.
13. Other Variations
For a list of all the Variations to minimum advertising requirements click here.
Conclusion
Employers should be mindful of the LMIA advertisement requirements and if applicable it’s variations as it can allow them to fill a vacancy more efficiently and quickly which in turn can allow them to save costs associated with the recruitment and advertisement requirements when applying for an LMIA.
For more information regarding LMIA advertisement requirements you may wish to contact our Business Immigration Lawyer.
Please note that this is general Information and should not be construed as legal advice.