Employers and employees alike frequently ask:
“Can I get a Canadian work permit without an LMIA?”
The answer is an unequivocal yes - provided your employee and/or business can fit within one of the LMIA exemption categories. In this blog post, we examine some different categories of Canadian work permits that do not require a positive LMIA.
What is an LMIA?
A Labour Market Impact Assessment (LMIA) is a government-issued document that a Canadian employer may require before they are permitted to hire a foreign worker.
A positive LMIA indicates that there is a need for foreign workers to fill the job, and that no Canadian citizen or permanent resident is available to do the job. A positive LMIA is also called a “confirmation letter”, as it enables an employer to hire a foreign worker. Employers must apply for an LMIA before they hire, and before the foreign worker may apply for a work permit.
A negative LMIA indicates that the position should be filled by a Canadian citizen or permanent resident because hiring a foreign worker will not have a positive or neutral impact on the Canadian labour market.
Why Avoid the LMIA Process
Applying for an LMIA is the general rule before Canadian employers may hire foreign workers. However, there are some exemptions from this general rule whereby employers may bypass some or all of the LMIA process. Many of these exemptions are due to international free trade agreements with other countries, but some exemptions exist due to an acknowledged labour shortage of highly skilled and/or low wage workers.
Whenever possible, employers should seek to fit within one of the LMIA exemption categories for the following reasons:
- The LMIA process is highly technical and it is easy for HR departments to make an error that is fatal to the application;
- The LMIA process is very time consuming, because the position must be advertised for a set period of time on both Job Bank and external job search sites. After completing the LMIA application, employers may have to wait months for the application to be processed and a decision rendered;
- Obtaining a positive LMIA can be very costly for employers;
- There is no guarantee of success. You may spend significant time and money on the LMIA application process, only to receive a negative LMIA that precludes you from hiring a foreign worker.
Popular LMIA Exemption Categories
When an LMIA exemption category is available to a Canadian employer, they should almost always seek to use that option in order to hire a foreign worker. Some of the most popular LMIA exemption categories include:
1. International Fair Trade Agreements, including the Canada-United States-Mexico Agreement (CUSMA)
Canada is a party to a number of international free trade agreements that facilitate, on a reciprocal basis, temporary entry for business persons. Some of these free trade agreements include:
- Canada-United States-Mexico Agreement (CUSMA)
- Canada-Colombia Free Trade Agreement
- Canada-Peru Free Trade Agreement
- Canada-Chile Free Trade Agreement
- Canada-Panama Free Trade Agreement
- Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) which includes Australia, Japan,Mexico, New Zealand, and Singapore as ratified signatories
- General Agreement on Trade in Services (GATS)
CUSMA (formerly known as NAFTA) is an international free trade agreement between Canada, the United States, and Mexico. Under CUSMA, citizens from the United States or Mexico who possess a valid job offer and the required professional credentials are eligible for work authorization in Canada. CUSMA professional visas are relatively inexpensive, quick to be processed, and can be renewed indefinitely.
2. Intra-company Transfers
Under Canada’s International Mobility Program, foreign nationals who are employees of a multinational company may be eligible to transfer to one of the company’s locations within Canada as an intra-company transferee. There are eligibility criteria that both the company and the employee must meet:
Company Eligibility
- Must be operational for at least 12 months (ideally 3+ years) before expansion to Canada;
- Must be financially sound and capable of supporting the foreign operations in Canada;
- Must be related to the company in Canada as a parent, subsidiary, or affiliate company;
- Demonstrate that the Canadian company will be a viable enterprise that will result in job creation for Canadians.
Employee Eligibility
- Must be in an executive, senior managerial, or specialized knowledge position
- Must have worked for the home company for at least 12 months over the previous 3 years.
Work permits are initially issued for one year, but can be renewed via application. The maximum duration is 7 years for executive and senior managerial positions, and 5 years for specialized knowledge employees.
3. Canada Global Talent Stream
The Global Talent Stream is an immigration program that provides a pathway for Canadian employers to speed up the hiring of temporary foreign workers for specialized occupations. It’s one of the quickest work permits to receive, with processing times as short as 10 days.
In order to hire a temporary foreign worker through the Global Talent Stream, an employer must fit within one of two categories: Category A (Designated Partner Referral) or Category B (In-Demand Occupation).
All companies that hire through the Global Talent Stream program must develop a Labour Market Benefits Plan which demonstrates the company’s commitment to activities that will create lasting, positive impacts on the Canadian labour market. These commitments are divided into mandatory and complementary benefits. Complementary benefits might include things such as job creation or transferring knowledge to Canadian citizens and permanent residents.
Those companies who utilize Category A must commit to creating jobs for Canadians and permanent residents as their mandatory benefit.
Those companies who utilize Category B must commit to increasing skills and training investments for Canadians and permanent residents and their mandatory benefit.
Conclusion
If you need a work permit for your employee, speak with an immigration lawyer before beginning the hiring or recruitment process. An immigration lawyer will be able to consider all LMIA exempt categories to determine if your position may qualify - saving you time, money, and considerable stress.
Contact Sisu Legal to Schedule a Strategy Session with our lawyers!