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Labour Market Opinion Exempt Categories Allow Employers to Obtain Work Permits Faster

Date

April 13, 2010

AUTHOR(s)

Naseem Malik


Employers can obtain work permits for temporary foreign workers faster by using Labour Market Opinion (LMO) exempt categories.

In most circumstances, employers wanting to hire temporary foreign workers must apply to Service Canada for an LMO before the worker is eligible for a work permit from Canada Immigration.

As we mentioned in a previous edition of the LEQ, new national standards now require all LMO applications — irrespective of occupation — to have minimum advertisement and recruitment requirements that are based on the National Occupational Classification system. This could mean that it would take employers longer to bring temporary foreign workers to Canada and could present significant challenges where employers need workers’ immediate help on specialized projects.

That said, there are alternatives to the LMO process, i.e., employers can obtain employees’ work permits using one of the LMO exempt categories, which include:

Intra-Company Transfers

Provided they meet the criteria, Intra-Company Transfers may transfer from their employers outside Canada to a legally related company (e.g., subsidiary; sister/affiliate; parent; branch) in Canada. In the previous three-year period, the employee must have been employed by your organization for at least one year in an executive, managerial capacity or in a special knowledge category. The Intra-Company Transfer categories under the North American Free Trade Agreement (NAFTA) and the Global Regulations have been harmonized, so there is no real difference or advantage to using one category over the other.

NAFTA Professionals

To qualify as a NAFTA Professional, your employee must be an American or Mexican citizen who has secured employment with a Canadian employer and who meets certain educational and professional standards. There is, in fact, a list of over 60 professional occupations that are covered by this category, including computer system analysts and management consultants.

Information Technology Worker Program

To qualify for this category, the job being offered must fit within one of seven job descriptions. Each of the categories requires that the applicant possess a minimum level of education, work experience, and proficiency in specific computer skills. Technically this is not a LMO exempt category because Canada Immigration and Service Canada entered into a national agreement, but the net effect is that if a foreign worker does qualify, the employer in Canada does not have to obtain an LMO. Due to the technicality previously mentioned, those destined for the province of Québec must still obtain a Québec Certificate of Acceptance.

Significant Benefit Category C10

The Significant Benefit Category C10 may be used where: i) an LMO confirmation is not available given urgent timelines; ii) eligibility for another LMO exemption is not possible based on the facts of the case; and iii) entry of the worker will benefit the Canadian labour market in a significant manner, from an economic, social or cultural perspective.

Reciprocal Benefits C20

This category allows foreign nationals to obtain a work permit where their prospective employer can demonstrate that reciprocal employment opportunities are being provided in the country the foreign national is from (for Canadian Citizens).

Reciprocal Benefits C21 — Young Worker Programs

This category includes such agreements as the Working Holiday Program (WHP) as well as the Student Work Abroad Program (SWAP). There are multilateral programs that are not nationality-specific, and bilateral programs that are only for use between certain prescribed countries and Canada. In general, work permits issued under the programs are short-term (less than two years) and not renewable.

Spousal

A work permit in this category is available for a lawfully married or common law spouse of a person already on a work permit in Canada.

The general criteria for the category include proof of a genuine relationship, as well as evidence that the principal spouse has a work permit for at least six months in duration and that the permit is in an acceptable professional category.

Post-Graduate

To qualify, the foreign graduating student must have graduated from an approved post-secondary institution and must have studied full-time for at least eight months preceding the completion of the program of study, completed and passed the program of study, and received a notification of eligibility to obtain his/her degree, diploma or certificate.

Off Campus

The Off-Campus Work Permit Program allows foreign students on valid study permits at certain prescribed publicly funded post-secondary educational institutions to work off-campus while completing their studies.

Tips for Employers

Given the logistics of trying to obtain an LMO, employers should first explore whether their workers can come into Canada under one of the LMO exempt categories.

Using LMO exempt categories to obtain work permits for employees has the advantage of allowing employers to apply directly to Canada Immigration for a work permit. This can significantly reduce processing timelines.

We recommend working with legal counsel to ensure a proper assessment of whether the worker is eligible under a given exemption and to prepare the necessary supporting documentation.

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