Temporary Foreign Worker Program: Here’s What Employers Should Know

Under the Temporary Foreign Worker Program, Canadian employers can employ foreign workers to temporarily fill job positions for which qualified Canadians or permanent residents are not available.

This blog addresses common questions employers may have about hiring temporary foreign workers, such as documentation requirements, employer responsibilities, compliance, and changes to the Temporary Foreign Worker Program during COVID-19.

How do I hire a temporary foreign worker in Canada?

The first step you must take in the hiring process is to determine if you need a Labour Market Impact Assessment (LMIA). The LMIA will clarify if your business can hire a foreign worker to fill labour or skills shortages for a temporary period.

Employment and Social Development Canada (ESDC) provides information for employers by detailing the different steps that must be taken to determine if a business is eligible to hire temporary foreign workers.

What is a LMIA?

A LMIA is a document that an employer may need to apply for and receive before hiring a temporary foreign worker. A Labour Market Impact Assessment establishes if the hiring of a temporary foreign worker will have a positive or negative impact on the Canadian labour market.

A positive LMIA will state that there is a need for a temporary foreign worker to fill the job the employer is hiring for and show that no Canadian worker or permanent resident is available to do the job. If a LMIA is positive, it is often referred to as a confirmation letter.

Who needs a LMIA?

Most employers will need a LMIA before they are able to hire a temporary foreign worker. To find out if the business and the temporary foreign worker are exempt from a LMIA or work permit, the business can do one of the following:

Review the LMIA exemption codes and work permit exceptions

First, select the LMIA exemption or work permit code that seems most relevant to the business’ hiring situation and read the description.

If an exemption code applies to the business, the employer will need to include it in the offer of employment to the temporary foreign worker.

Contact the International Mobility Workers Unit (IMWU)

This is available only if the business is hiring a temporary foreign worker who is both outside Canada and from a country whose nationals are exempt from visas.

How do I get a LMIA?

If it is determined that you need a LMIA to hire a temporary foreign worker, you’ll have to apply for one through ESDC/Service Canada. The application process to receive a LMIA is different depending on the type of program the business is hiring through, such as the high-wage workers program or the low-wage workers program.

The LMIA application can be submitted up to six months prior to the temporary foreign worker’s expected start date.

How do I apply for a LMIA for a high-wage position?

If you are offering a job to a temporary foreign worker that is at or above the provincial or territorial median hourly wage, you are required to apply under the stream for high-wage positions.

For context, Alberta’s median hourly wage is $28.85, British Columbia’s is $26.44, Ontario’s is $26.06, Manitoba’s is $23.00, and Saskatchewan is $25.96 as of April 30, 2022.

What documents do I need to apply for a LMIA under the high-wage stream?

To apply for a LMIA under the high-wage stream, your application must include:

• Labour Market Impact Assessment application form for high-wage positions (EMP5626)
• proof of business legitimacy
• proof of recruitment

When completed, the application and all supporting documentation should be sent to the appropriate Service Canada Processing Centre along with the processing fee. The processing fee consists of $1,000.00 for each position requested and must be paid for by the employer.

What about applying for a LMIA for a low-wage position?

If you are offering a job to a temporary foreign worker that is below the provincial or territorial median hourly wage, you must apply under the stream for low-wage positions.

What documents do I need to apply for a LMIA under the low-wage stream?

To apply for a LMIA under the low-wage stream, your application must include:

• Labour Market Impact Assessment application form for low-wage positions (EMP5627)
• proof of business legitimacy
• proof of recruitment
• employment contract

When completed, the application and all supporting documentation should be sent to the appropriate Service Canada Processing Centre along with the processing fee. The processing fee is also $1,000.00 for each position requested and must be paid for by the employer.

What happens after I submit a LMIA application?

Based on the information provided in the application, you will receive a negative or positive LMIA in the form of a letter. If you receive a positive LMIA, you will need to:

• Ensure the employment contract has been signed by the temporary foreign worker
• Provide a copy of the LMIA letter and its Annex A to the temporary foreign worker
• Inform the temporary foreign worker to apply for permanent residence to immigrate to Canada OR apply for a work permit prior to the LMIA expiry date. As of April 4, 2022, the LMIA letter is valid for 18 months from the date of issue

Once the employer receives the positive LMIA and provides the above documentation to the temporary foreign worker, the worker can apply for a work permit.

What documents does the temporary foreign worker need to apply for a work permit?

To apply for a work permit, the worker needs:

• Proof of identity
• Proof of employment in Canada (an offer of employment number or a copy of the LMIA letter and a copy of the employment contract)
• Proof of eligibility for the job (For example, a resume that details education or past work experience)

If the employer receives a negative LMIA, that indicates that the position should be filled by a Canadian citizen or permanent resident. The employer will not be reimbursed the processing fee if they receive a negative LMIA.

What are some things to keep in mind about documentation for the LMIA application?

After the business determines if it needs to apply for a LMIA, applies (if applicable) and receives a positive or negative LMIA letter, the business must retain all the documents involved in the application process.

The employer must keep all documents used to support their application for a minimum of six years starting from the first day of the period of employment for which the work permit is issued. The Government of Canada may request these documents at any time to verify the business’ past compliance with the Temporary Foreign Worker Program conditions.

What are my responsibilities after hiring a temporary foreign worker?

The employer’s responsibilities include but are not limited to:

• Ensuring the temporary foreign worker has their work permit
• Ensuring the temporary foreign worker follows the conditions and time limits outlined on their work permit
• Meeting the employer commitments to the temporary foreign worker regarding wages, working conditions and the occupation that was listed in the offer of employment or LMIA
• Complying with provincial, territorial, or federal employment laws
• Ensuring the business remains active during the period of the work permit validity
• Making reasonable efforts to provide a workplace free of abuse, and
• Helping the temporary foreign worker obtain the correct identification and documents (social insurance number, medical documents, etc.)

How do I ensure I am compliant with the Temporary Foreign Worker Program?

It is also the responsibility of the employer to ensure the business is complying with all rules and regulations surrounding the temporary foreign worker. To ensure compliance, you must continue to:

Meet the requirements of:

• Labour Market Impact Assessment
• Terms of the LMIA decision letter
• Annexes to the decision letter
• Immigration and Refugee Protection Regulations (IRPR)

Keep all relevant records for six years from the day the work permit is issued, including:

• Documents related to the LMIA
• Documents related to the conditions set out in the IRPR
• Conditions outlined in the LMIA decision letter and its annexes

Inform ESDC (through the Employer Contact Centre at 1-800-367-5693) immediately of:

• Any changes or errors with an approved LMIA
• Changes in the working conditions of the temporary foreign worker

Address any compliance issues and notify the ESDC

What should I know about ESDC inspections?

To enforce compliance and ensure employers hiring temporary foreign workers are operating in accordance with the appropriate standards and conditions, ESDC has the authority to inspect the business as per the IRPR.

Under the IRPR, ESDC officers can inspect the LMIA decision letter and annex, the treatment of the temporary foreign worker for up to six years after the temporary foreign worker started working, and interview other temporary foreign workers and employees to confirm the employer is complying with the program.

What are some common reasons for an inspection?

In accordance with the IRPR, the ESDC can inspect the workplace if:

• They suspect non-compliance
• The business was non-compliant before
• As part of a random selection
• A worker is or was subject to an order under the Emergencies Act or the Quarantine Act
• They find a communicable disease at the workplace

What happens when a business is inspected?

When a business is inspected, the ESDC will inform the employer of:

• The period under review
• The authority of the inspection
• The condition(s) with which the business must prove compliance
• What happens if the business does not respond to the inspection or does not comply with the conditions
• Instructions that need to be followed, such as what must be provided to the inspectors and who must be on hand for interviews

What are the powers of the inspector?

During an on-site visit of the workplace, the inspector could:

• Interview the employer and employees
• Request copies of documents
• Take photos, video, or audio recordings
• Examine anything at the workplace related to the IRPR and the LMIA approval letter
• Request access to examine computers and other electronic devices, and contact other relevant authorities as needed

What happens if an inspection shows compliance issues?

If the inspection is satisfactory, the business does not need to do anything further.

Alternatively, if the inspection shows that the business has compliance issues, the inspector will send an initial finding of non-compliance.

The business will then be asked to justify why it was not compliant with the program. In the justification, the business must state what it did to correct the non-compliance and what it has done to ensure it does not occur again. If the reasons in the justification are accepted, the inspection is complete.

In the case that the justifications are not provided by the business or if the justification is not accepted, the business will be issued a Notice of Preliminary Finding (NOPF).

The NOPF will include the details of the violation(s) and potential results. After the NOPF has been issued, the business has one final opportunity to provide new information or documents regarding the justification.

The final findings of the ESDC are then issued in the Notice of Final Determination (NOFD) which explains:

• The reasons for the ruling
• The conditions violated and how the business failed to comply
• The consequences, and
• The next steps

What are the consequences of non-compliance?

The possible consequences of non-compliance range from a simple warning to monetary penalties, a permanent ban from the Temporary Foreign Worker Program, publication of the business’ name and address on the Immigration, Refugees and Citizenship Canada website with details of the violation, and/or suspension or revocation of previously issued LMIAs.

What changes have been made to the Temporary Foreign Worker Program due to COVID-19?

Since March 2020, the Government of Canada has taken measures to improve flexibility and reduce the administrative burden for employers participating in the program during COVID-19. These measures include, but are not limited to, the following:

• Employers are not required to submit minor administrative changes to their LMIA that would not change the terms and conditions
• LMIAs for occupations considered essential during COVID-19 are prioritized for processing
• The maximum duration of employment under LMIAs is increased from one to two years for employers of workers in the low-wage stream as part of a three-year pilot
• Approved LMIAs are valid up to 18 months, and
• Name addition and change requests have been expedited if they are for reasons related to COVID-19 or for eligible TFWs already in Canada

What are the rules around travel during COVID-19 for temporary foreign workers?

Testing and quarantine requirements upon arrival vary depending on the country the temporary foreign worker is travelling from and whether they are fully vaccinated.

Pre-entry tests are not required for fully vaccinated travellers coming to Canada by land, air, or water. But they must still upload their travel details and vaccination proof in ArriveCAN within 72 hours before arrival to Canada.

Foreign workers must qualify as fully vaccinated travellers, unless they have a job in any of the following categories:

• Make medical deliveries
• Work with medical equipment or devices
• Marine crew member
• Agricultural or food processing worker

Foreign nationals who don’t qualify as fully vaccinated will only be permitted entry into Canada in specific circumstances.

All travellers coming to Canada must follow testing and quarantine requirements applicable to them.

What if I wish to employ Ukrainians seeking safe haven in Canada?

The government of Canada has launched an accelerated temporary residence pathway for Ukrainians seeking refuge in Canada. Under the Canada-Ukraine authorization for emergency travel (CUAET), Ukrainians can live in Canada as temporary residents for up to 3 years. They can also apply for a 3-year open work permit.

Employers, who would like to support Ukrainians and offer them employment, can register job vacancies on the government of Canada Job Bank’s Jobs for Ukraine webpage.

20-hour cap lifted for international students working off-campus

The Canadian government has recently announced that it will be temporarily lifting the 20-hour-per-week cap for eligible post-secondary international students working off-campus.

The move, announced by Canada’s Ministry of Immigration, Refugees and Citizenship, will be enacted from November 15, 2022, until December 31, 2023. It will allow international students in Canada who have off-campus work authorization on their study permit to no longer be restricted by the 20 hours per week rule. Foreign nationals who have already submitted a study permit application will also be able to benefit from this temporary change, provided their application is approved.

Do you need help creating temporary foreign worker policies in compliance with federal law?

Peninsula can help. Our experts can help you develop company policies, and assist you with any other HR, health and safety, and employment law matters that arise. To learn more about how our services can benefit your business, call an expert today at 1 (833) 247-3652