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Temporary Foreign Worker Program
Elimination of the Foreign Worker Application to Extend a Labour Market Opinion
Questions and Answers
1. Why has the Foreign Worker Application to Extend a Labour Market Opinion been removed from circulation?
2. Which streams of the Temporary Foreign Worker Program will be impacted by the elimination of the foreign worker application to extend a Labour Market Opinion?
3. Will return employers looking to extend a temporary foreign worker’s employment beyond the period covered by the original Labour Market Opinion be asked to demonstrate proof of past compliance?
4. Why is HRSDC/SC assessing a new employer’s application for a Labour Market Opinion differently than a return employer’s?
5. Are return employers required to include the proof of past compliance with their Labour Market Opinion application?
6. What other changes have been made to the operations of the Temporary Foreign Worker Program to support the removal of the foreign worker application to extend a Labour Market Opinion?
7. Why would an HRSDC/SC officer ask an employer to demonstrate proof of past compliance after my Labour Market Opinion was already approved?
8. Are temporary foreign workers authorized to work while their employer awaits the outcome of the new Labour Market Opinion request to extend that same foreign worker’s employment?
- In an attempt to streamline and simplify the Labour Market Opinion process for employers, HRSDC/SC will eliminate the foreign worker Application to Extend a Labour Market Opinion on April 27, 2009.
- In cases where employers anticipate that their human resource needs will continue beyond the period covered by the temporary foreign worker’s work permit, employers are requested to apply for a new Labour Market Opinion four months prior to the expiry of their current work permit. This will ensure that ample time exists for the processing of the new Labour Market Opinion and, if authorized, the subsequent work permit request.
- On April 27, 2009, employers wishing to hire temporary foreign workers under the Pilot Project for Occupations Requiring Lower-Levels of Formal Training (National Occupational Classification C and D), Exotic Dancer, and high-skilled occupations (National Occupational Classification 0, A and B) will no longer be provided with the option to submit an Application to Extend a Labour Market Opinion.
- All employers, whether they are first-time Labour Market Opinion applicants or those wanting to continue employing a worker beyond the period covered by the original Labour Market Opinion, must submit a new Labour Market Opinion application.
- Upon the submission of a new Labour Market Opinion application, a return employer under any stream of the Temporary Foreign Worker Program, including the Live-In Caregiver Program, could be asked to demonstrate proof of compliance with the terms of previous offers of employment to temporary foreign workers (e.g. wages and working conditions). In fact, a finding that a temporary foreign worker has not received the wages and/or working conditions that were set out in a previous offer of employment could lead to a conclusion that the offer of employment included with the new Labour Market Opinion application will not be respected and is therefore not genuine.
- Proof of past compliance will mainly focus on whether the wages and working conditions were adhered to in the terms of previous offers of employment to temporary foreign workers. In addition, all requests, whether a new or return employer, will be subject to the standard LMO assessment criteria imposed under Section 203(3) of the Immigration and Refugee Protection Regulations and the existing conditions and requirements imposed under the applicable Program stream.
- All Labour Market Opinion requests are assessed using the factors listed under Section 203(3) of the Immigration and Refugee Protection Regulations, and the existing conditions and requirements imposed on employers under the applicable Program stream. In making this assessment, HRSDC considers such factors as whether the wages being offered are consistent with the prevailing wage rate for the occupation, whether the working conditions meet generally accepted Canadian standards, whether the employment of the foreign national is likely to fill a labour shortage, and the efforts that the employer has made to recruit and train Canadian citizens and permanent residents.
- Unlike employers submitting their first Labour Market Opinion application, return employers have established a history with HRSDC/SC that can be used on subsequent Labour Market Opinion requests to more accurately establish whether the new offer of employment will be respected. For this reason, HRSDC/SC would also like to make it clear to these employers that their treatment of temporary foreign workers that they employ or have previously employed is a relevant factor that may be considered on subsequent Labour Market Opinion requests.
- The discretion to investigate an employer’s compliance with a previous Labour Market Opinion rests with the HRSDC. Unless requested by HRSDC/SC, employers are not required to submit proof of compliance with the terms of previous offers of employment to temporary foreign workers. In cases where it appears that a return employer has not fully respected the terms of a previous offer of employment to a temporary foreign worker, HRSDC/SC will work with the employer to help them understand and uphold their responsibilities by suggesting appropriate corrective measures. A negative LMO can be issued if a return employer is not willing to undertake the necessary corrective measures requested by an officer. All corrective measures will also need to be demonstrated before a subsequent LMO can be issued.
- A negative Labour Market Opinion could be issued if, upon the request of an officer, a return employer refused to demonstrate proof of past compliance with a previous Labour Market Opinion.
- HRSDC/SC recognizes that many employers will return for with future Labour Market Opinion requests, and would like to ensure that there is a way to identify them and also ensure that their unique needs are met.
- Effective April 27, 2009, the printable application for a Labour Market Opinion for employers wishing to hire temporary foreign workers under the Pilot Project for Occupations Requiring Lower-Levels of Formal Training (NOC C and D), Exotic Dancer, and high-skilled occupations (National Occupational Classification 0, A and B) will also have the following question added: Have you employed a foreign worker in the past five years?
- In May 2009, the same question will be added to the Labour Market Opinion applications for the Seasonal Agricultural Worker Program, Group of Employers, and Group of Employers Membership. Online applications for all affected streams of the Temporary Foreign Workers Program will also be updated at the same time to ensure consistency.
- Effective April 27, 2009, both new and return employers submitting Labour Market Opinion requests under the Pilot Project for Occupations Requiring Lower-Levels of Formal Training (NOC C and D), Exotic Dancer, and high-skilled occupations (National Occupational Classification 0, A and B) will also be given the option to take-part in a Monitoring Initiative. The agreement to participate will also be included on a revised Labour Market Opinion application form scheduled to be released on April 27, 2009.
- By agreeing to participate in the Monitoring Initiative, employers will be asked to demonstrate that they have fulfilled the terms of offers of employment to temporary foreign workers hired as a result of the Labour Market Opinion application, as well as to provide up-to-date information on their labour force profile, specifically recent and anticipated arrivals, lay-offs and departures of Canadians, permanent residents, and temporary foreign workers. Such information will help to strengthen the integrity and protect the future of the Temporary Foreign Worker Program.
- Employer participation in the Monitoring Initiative is voluntary and they may withdraw at any time by providing written notice to HRSDC/SC. Further, an employer’s decision whether or not to participate in the Monitoring Initiative will not influence the outcome of the Labour Market Opinion application in any way.
- Although the Monitoring Initiative is voluntary, employers who have previously hired temporary foreign workers may be required by HRSDC/SC to demonstrate proof of past compliance in support of new applications. This process is not voluntary as it helps HRSDC/SC make a decision about a subsequent Labour Market Opinion application, based on information about past employer behaviour.
- A temporary foreign worker can continue working while the Labour Market Opinion and work permit application are being processed, provided they apply to have their work permit renewed before the expiration date of their initial work permit.
- If a work permit is expired and the request for a work permit renewal is made after the expiration date, a temporary foreign worker is not allowed to work. A temporary foreign worker in this situation must seek a restoration in status and work permit renewal from Citizenship, Immigration and Multiculturalism (formerly Citizenship and Immigration Canada) before being eligible to return to work.
- A temporary foreign worker wishing to extend their employment in Canada will be allowed to apply for a work permit while he/she is in Canada through Citizenship, Immigration and Multiculturalism Canada Central Processing Centre in Vegreville, Alberta. Officers with Citizenship, Immigration and Multiculturalism Canada will continue to assess work permit applications to ensure that a temporary foreign worker meets the terms and conditions prescribed, including the likelihood of that temporary foreign worker to leave Canada by the end of their authorized stay.
- Please note that it is the choice of the employer if they put forward the name of a new or current temporary foreign worker on an LMO application. The employer may receive a positive, or neutral LMO if the name put forward is that of a current temporary foreign worker. However, as is always the case, Citizenship and Immigration Canada will assess on a case by case basis, based on the requirements of IRPA and IRPR, whether or not a work permit will be issued to the worker.
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