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GETTING LMIA APPROVALS – “LAST RESORT”? TEMPORARY FOREIGN WORKER PROGRAM – Regulation 203

In the Immigration and Refugee Protection Regulation [IRPR], Parliament created Division 2 – Application for Work Permit to include a way for Canadian employers to be able to fulfill their labour needs when they are unable to do so by relying exclusively on the pool of labour available in Canada. One of the principal ways that Parliament did this was through the enactment of Regulation 203 of the IRPR.


This section allows Canadian employers to apply to Employment and Social Development Canada (ESDC) for the issuance of a positive Labour Market Impact Assessment (LMIA), which would then allow the employer to hire a temporary foreign national with the skills that the employer needs come to Canada with a work permit. The basic test that is set in the law for the issuance of a positive opinion is whether “the employment of the foreign national is likely to have a neutral or positive effect on the labour market in Canada”, and that “reasonable efforts have been made to hire or train Canadian citizens or permanent residents”. This language on its face does not suggest that it should be particularly difficult for a Canadian Business to apply and obtain a positive LMIA to bring a foreign national with the needed skills to Canada. Unfortunately, as all immigration professionals handling LMIA applications since approximately 2013 will openly confess, it is not easy to get LMIA approvals from ESDC.


In several litigation cases challenging the refusal by ESDC to issue positive LMIAs, including our firm, ESDC has come out and said that they govern the Temporary Foreign Works Program (TFWP)  as a “last resort” for Canadian Employers to hire foreign workers. The law does not speak of it as a “last resort” but it is clearly the government’s policy in keeping with this dictum.


Interestingly, in recent news articles, including from the Business Development Bank of Canada, the following labour shortage is reported:

Canada’s small and mid-sized companies must find ways to adapt to a “new norm” of worker shortages that will likely persist for a decade, says Pierre Cleroux, chief economist for the Business Development Bank of Canada.


“They represent about 50 per cent of the Canadian economy. So they are very important. Also, they are very important in smaller communities,” Cleroux said in an interview ahead of a report issued Wednesday by the federal Crown corporation.


The BDC’s survey of 1,208 people from small and medium-sized businesses, with at least $500,000 in annual sales, found 39 per cent of them were having difficulties hiring the types of new workers they required.


The bank’s report comes ahead of Statistics Canada’s release on Friday of the labour force survey for the month of August. Last month, its national unemployment rate for July fell to a four-decade low of 5.8 per cent.


A private-sector analysis from the Canadian Federation of Independent Business released last month also found its “job vacancy rate” hit 3.1 per cent in the second quarter — a new high for a statistic calculated since 2004.


https://www.bnnbloomberg.ca/labour-shortage-is-new-norm-that-will-last-a-decade-bdc-economist-1.1133200


Again, the problem is that there is nothing in the statute that speaks to the hiring of temporary foreign workers as “a last resort”.  This is a term coined by ESDC in its “Temporary Foreign Worker Program”.  Instead the language of the Regulations speaks of issuance of work permits when the need is proved and the other applicable criteria are met, as long as the “employment of the foreign national is likely to have a neutral or positive effect on the labour market in Canada”. This language is a far cry from “as a last resort” which has been clearly established as the legal test by the Administrators of the “TFWP”.  Applying a different criterion not derived from the Regulation is inappropriate, as it underpins the guidelines used by the officers in the administration of the program.


We believe that it is this notion “as a last resort” that leads to a section of the Regulations, created by Parliament to assist Canadian businesses to meet their labour needs, to be ineffective and a failure to help Canadian businesses address the problems described by the Business Development Bank of Canada.

LINK TO IRPR: R.203 http://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-227/page-43.html#docCont

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