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Labour Market Impact Assessments

For those of you who believe that government, at best, cares about your wellbeing and, at worst, is indifferent to your wellbeing, a counter example can be found in the Labour Market Impact Assessment regime, or so I would argue. Labour Market Impact Assessments (LMIAs), formerly known as Labour Market Opinions (LMOs) are Kafkaesque rituals of degradation, reproach, and recrimination in which you attempt, probably in vain, to hire a foreign worker, and the government treats you and your legal representative like contemptible creatures worthy of the utmost scorn. 

If you think I am exaggerating, you clearly have not been through an LMIA application before. If you absolutely must apply for an LMIA, I will help you, provided you are willing to pay my fee, I believe you qualify, you remain honest with me and the government in your application, and you understand that Employment and Skills Development Canada (ESDC) will likely nitpick the application to death.

While I greatly enjoy practicing in other areas of immigration law, including refugee law, LMIA applications are the big exception. In the current environment, it is very difficult for employers to qualify for LMIAs. An employer wishing to apply for an LMIA is faced with the prospect of paying $1000 per position being sought as a government application fee. In other words, if an employer wishes to hire 5 food counter attendants through an LMIA, the employer will have to pay ESDC $5000. There is no guarantee that ESDC will approve the application. As well, this fee will have to be paid the following year if the employer wishes to renew the work permits of the workers by doing a subsequent LMIA application.

For employers with 10 or more employees who are hiring "low wage" workers, the cap is currently 20 percent of the workforce who can be hired through LMIAs. In June of 2016, that cap will drop to 10 percent of the workforce, meaning that future LMIA applications will be even more difficult.

If an employer is lucky enough to obtain an LMIA, that employer faces the prospect of being investigated for compliance at any time without notice. Penalties for compliance violations could theoretically bankrupt an employer. As such, the current Labour Market Impact Assessment process is only slightly more attractive than, say, gnawing off a body part to escape from a trap. I typically recommend an LMIA application as an absolute last resort for any employer. 

The unfortunate fact of the matter is that many employers rely on foreign workers to take on jobs that Canadians simply are not interested in doing. Employers who are stuck in this situation (for example, employers located in remote areas, employers offering low paid service industry jobs, etc.) may consider different strategies:

1.    Connect with International Experience Canada (Working Holiday) applicants. International Experience Canada is a program that allows young adults in select foreign countries to work in Canada for a one year period. In many cases, IEC applicants are not looking for a career, but simply wish to have a fun experience in another country. Many are willing to work for minimum wage in scenic locations, such as the Canadian Rockies. The trade-off is that these workers are truly temporary - typically, they can stay at a job for no more than a year, and they may be willing to quit a job early if they don't like the work, or the constraints the work places on their recreational lifestyle.

2. Consider hiring students and recent graduates, both domestic and international. Prior to the explosion of the Temporary Foreign Worker program in the last decade, low paid service industry work was often performed by high school and post-secondary students, as well as recent graduates. It is likely to be the case that things will largely revert to the way they were in that respect. One thing for employers to note is that international students studying in Canada typically have the ability to work part time. These foreign students are often eager to work for a Canadian employer for three reasons: (1) international tuition fees are outrageously expensive; (2) foreign students are interested in acquiring Canadian work experience; and (3) foreign students often wish to get a realistic sense of Canadian culture and English language usage. Once these students graduate, they typically receive post-graduate work permits that allow them to work anywhere in Canada for a period of time. These international graduates may be less motivated by high wages as they are by the prospect of gaining skilled Canadian work experience and qualifying for permanent immigration to Canada.