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Government document

Hiring Temporary Foreign Workers - Stream for Lower-skilled Occupations

Date

2013-11-13

Authors

Employment and Social Development Canada

Publisher

Employment and Social Development Canada

Full text

Formerly known as the Pilot Project for Occupations Requiring Lower Levels of Formal Training (NOC C and D))

Description
Requirements
Wages,Working Conditions and Occupations
Recruitment and Advertisement
How to Apply
Description
You (the employer) may be allowed to hire temporary foreign workers for a maximum of 24 months through the Stream for Lower-skilled Occupations when there is a demonstrable shortage of Canadian citizens and permanent residents.

In Canada, lower levels of formal training are defined as occupations that usually require at most a high school diploma or a maximum of 2 years of job-specific training according to the NOC Classification system. These occupations are coded at the NOC C or D skill level. See NOC job descriptions.

Requirements
Processing Fee
Employers must pay $275 for each position requested (e.g. $275 x number of positions=total payment) to cover the cost of processing a labour market opinion (LMO) application.

The processing fee payment (in Canadian dollars) can be made by:
certified cheque (payable to the Receiver General for Canada)
money order (postal or bank)
Visa
MasterCard
American Express
There will be no refund in the event of a negative LMO, or if the application is withdrawn or cancelled by the employer since the fee covers the assessment process and not the outcome.
Employers requesting to have their LMO application reconsidered, as a result of a negative LMO, must submit a new application and processing fee for each position.
Refunds will only be available if a fee was collected in error (e.g. an incorrect fee amount was processed).
Note:
The LMO processing fee does not apply to lower-skilled positions related to on-farm primary agriculture such as general farm workers, nursery and greenhouse workers and harvesting labourers (specifically NOC codes 8431,8432 and 8611).
It is the policy of the Government of Canada, that under no circumstances, can employers and third-party representatives recover the LMO processing fees from temporary foreign workers.
Language Restriction
A distinct language assessment factor has been introduced as subsection 203 (1.01) of the Immigration and Refugee Protection Regulations (IRPR). As a result, English and French are the only languages that can be identified as a job requirement both in LMO applications and in job advertisements by employers, unless they can demonstrate that another language is essential for the job.

Note:
The language restriction does not apply to lower-skilled positions related to on-farm primary agriculture such as general farm workers, nursery and greenhouse workers and harvesting labourers (specifically NOC codes 8431, 8432 and 8611).
Transportation Costs
When hiring a foreign worker under the Stream for Lower-skilled Occupations, you must always pay the round trip transportation costs for the foreign worker to travel to the location of work in Canada and return to his/her country of permanent residence. These costs cannot be passed on to the foreign worker (i.e., the worker pays for transportation costs and is reimbursed at a later date). Under no circumstances are transportation costs recoverable from the foreign worker.

Housing
When applying to hire a foreign worker in NOC C and D occupations, you will be expected to show that you are providing affordable housing or show (e.g. through newspaper clippings) that affordable housing is available where the foreign worker is expected to work.

Health and Workplace Safety
As outlined in the employment contract, you must ensure that the foreign worker is covered by private or provincial health insurance at all times. If private health insurance must be provided, you must pay for the insurance and these costs cannot be recovered from the worker. Under the employment contract, you must also register the foreign worker under the appropriate provincial Workers' Safety and Compensation Board.

Employment Contract
You must prepare and sign an employment contract (PDF version 25 KB) lower-skilled employment contract). A signed copy must be attached to your Labour Market Opinion (LMO) application. Upon receipt of a letter of confirmation from Human Resources and Skills Development Canada (HRSDC)/Service Canada, you must send a copy of the signed contract and the HRSDC/Service Canada confirmation letter to the foreign worker. The worker will need to submit these documents to Citizenship and Immigration Canada (CIC)when applying for a work permit.

In the event differences arise between yourself and the foreign worker, the contract will guide the resolution of disputes. In cases of demonstrable breaches of the employment contract, where no reparations have been made, HRSDC/Service Canada reserves the right to discontinue service for the hiring of foreign workers.

In addition to the employment contract, foreign workers, like Canadians, are covered by provincial labour and workplace safety legislation.

Union Consultation
If the position being filled by the foreign worker is part of a bargaining unit, the following factors, although not determinative, will support a positive HRSDC/Service Canada decision and will reduce delays in the recruitment of the foreign worker especially in NOC C and D occupations:

Conduct union consultations before applying to hire the foreign worker(s).
Actively work with union officials to recruit unemployed Canadians.
Confirm that the conditions of the collective agreement (e.g. wages, working conditions) will apply to the foreign worker.
HRSDC/Service Canada reserves the right to contact union representatives when reviewing your application.

Third-party Representatives and Recruiters
Employers do not need to use the services of a third-party representative or recruiter to apply for a TFW. However, employers who choose to use the services of one of these individuals or organizations must pay for all of the fees associated with the service and meet all of the applicable requirements.

Representatives assist employers by providing services, such as:

explaining and providing advice on the TFWP;
completing and submitting the application form and all required documents;
communicating with HRSDC/Service Canada on the employer’s behalf; and
representing the employer during the application process.
Employers who wish to use the services of a representative, paid or unpaid, must complete and submit Schedule A - Appointment of a Third-party Representative. Employers must identify their representative and not simply the firm/organization employing this person.

Paid Representatives

Individuals representing or assisting employers in exchange for compensation (e.g. money, goods or services) must be authorized under section 91 of the Immigration and Refugee Protection Act (IRPA), which means they have to be a member in good standing with:

a Canadian provincial/territorial law society, or a student-at-law under its supervision;
the Chambre des notaires du Québec;
the Province of Ontario’s law society as a paralegal; or
the Immigration Consultants of Canada Regulatory Council (ICCRC).
Employers should visit Citizenship and Immigration Canada (CIC) to verify that a specific representative is authorized to represent them or provide immigration advice.

Unpaid Representatives

Individuals representing employers for free (e.g. do not collect fees or other forms of compensation) are not subject to any restrictions under the IRPA. These individuals are usually family members, non-for-profit or religious organizations that assist employers who may not be able to complete the application process on their own.

Recruiters

Recruiters can assist employers by providing services such as:

placing job advertisements for the recruitment of TFWs;
screening potential employees;
making travel arrangements; and
negotiating wages/salaries on behalf of the employer.
Employers, using the services of a paid recruiter to represent them during the LMO application process, must complete the Third-party, Recruiter or Employer Agency Information section of the application form as well as the separate Schedule A - Appointment of a Third-party Representative. The paid recruiter representing the employer must be a member of one of the groups authorized under section 91 of the IRPA.

If a paid representative is not authorized under the IRPA, HRSDC/Service Canada will continue to process the application, but will communicate with the employer directly. However, a copy of a signed letter stating that the employer is no longer using the services of the original representative will be required before the employer can:

hire another paid authorized representative; or
work with an unpaid representative.
Employers who wish to appoint another representative must also submit a new Schedule A - Appointment of a Third-party Representative.

Note:
HRSDC/Service Canada:
reserves the right to contact employers directly when further information or documentation is required.
will not mediate a dispute between an employer and a third-party representative nor communicate complaints to a regulatory body on an employer’s behalf. Employers who wish to file a formal complaint against their representative should contact the appropriate regulatory body (e.g. the provincial law society, the Chambre des notaires du Québec or the ICCR). For additional information on how to file a complaint, visit CIC.
Labour Disputes
If you are making an offer to a foreign worker for a position that affects current or foreseeable labour disputes at your workplace, or affects the employment of any Canadian worker involved in such disputes, HRSDC/Service CIC will not confirm the hiring, or issue a work permit to the foreign worker.

Wages, Working Conditions and Occupations
HRSDC/Service Canada reviews the wages that you are offering to the foreign worker, and compares them to wages paid to Canadians in the same occupation based on labour market information from Statistics Canada, HRSDC/Service Canada, provincial ministries, and other reliable sources. If you are offering wages below rates paid to Canadians in the same occupation and region, HRSDC/Service Canada will not issue a positive LMO in response to your request to hire a foreign worker.

You are required to offer a temporary foreign worker working in a unionized environment the same wage rate as established under the collective bargaining agreement. In addition, benefits provided to Canadian workers or permanent residents must be extended to the foreign worker.

These requirements also apply to the regular LMO process. If you want to offer the collective agreement wage, you must apply under the regular LMO process.

In order to address unique circumstances, HRSDC/Service Canada maintains the discretion to set the prevailing wage rate that an employer must offer a temporary foreign worker whether or not the position is covered by a collective agreement. The prevailing wage is the median hourly wage paid to Canadians working in an occupation in a specific geographical area.

You must make sure that the working conditions that you are providing are consistent with federal and/or provincial standards; for the occupation and workplace

Employers are required to conduct recruitment efforts to hire Canadian citizens and permanent residents, before offering a job to temporary foreign workers (TFW).

Recruitment
Recruitment is the process of finding and selecting qualified employees. All employers are encouraged to conduct ongoing recruitment efforts, including advertising the job or contacting the underrepresented groups that face barriers to employment.

Employers do not need a third-party representative or recruiter to conduct recruitment on their behalf in order to hire a TFW. However, if employers choose to use the services of a third-party representative or a recruiter, they must pay for all the fees associated with this service.

Note:
Under no circumstances, can the employer recover the advertising or recruitment costs from the TFW.

Variations to the advertisement requirements
There are variations to the requirements for advertising for specific occupations and in particular provinces, including:

On-farm primary agricultural workers
Advertisement
A job posting is an announcement of an employment opportunity in a public medium such as newspapers, job posting Internet site, bulletin boards, etc. It provides a broad exposure of the vacancy to Canadian citizens and permanent residents in Canada who would be potential candidates for the position.

To meet the minimum advertising requirements set by the Program, employers must advertise:

On the national Job Bank or its provincial/territorial counterpart in British Columbia, Saskatchewan, the Northwest Territories, Quebec or Newfoundland and Labrador
The advertisement must be posted for a minimum of 4 weeks starting from the first day the ad appears and is accessible to the general public.
The advertisement must remain posted to actively seek qualified Canadians and permanent residents until the date a labour market opinion is issued.
Using 2 or more additional methods of recruitment consistent with the normal practice for the occupation.
employers can choose 1 or more recruitment methods among these:
print media (local newspapers, job boards, youth magazines etc.); and
general employment websites (jobboom.com, workopolis.com, monster.ca, etc.).
The advertisement must be posted for a minimum of 4 weeks starting from the first day the ad appears and is accessible to the general public.
Targeting underrepresented groups
Employer can:
try to recruit workers from local or provincial/territorial employment centres, service centres for Aboriginal youth, new immigrants and people with disabilities;
offer bursaries to attract students or youth, pursue online recruitment strategies, or undertake ongoing advertising and interviews in order to maintain a pre-screened applicant pool.
The advertisement must include the:

Company operating name
Business address
Title of position
Job duties (for each position, if advertising more than one vacancy)
Terms of employment (e.g. project based, permanent position)
Wage
Benefits package being offered (if applicable)
Location of work (local area, city or town)
Contact information: telephone number, cell phone number, email address, fax number, or mailing address;
Skills requirements:
Education
Work experience
Note:
Third-party representatives or recruiters can be the main contact for any job advertisements posted on behalf of the employer. However, the ad must be listed under the employer's Canada Revenue Agency Business Number.

Additional Advertisement Requirements

Employers may be required to conduct alternative or additional advertisement efforts such as, increased duration (length of time) or broader advertisement (whether local, regional or national). These additional efforts would be required if Human Resources and Skills Development Canada (HRSDC)/Service Canada determines that it would likely yield qualified Canadian citizens and permanent residents who are available to work in the occupation and region.

Proof of Advertisement

Employers must demonstrate that they meet the advertising requirements by providing proof of advertisement and the results of their efforts to recruit Canadian citizens and permanent residents (e.g. copy of advertisement and information to support where, when and for how long the position was advertised). Records of the employers' efforts should be kept for a minimum of 6 years, as stipulated in provincial/territorial and federal legislation, such as the Income Tax Act. HRSDC/Service Canada may request these documents for future assessments.

How to Apply
Before you apply for an LMO to hire a foreign worker under the Pilot Project for Occupation Requiring Lower Levels of Formal Training, HRSDC/Service Canada and CIC will expect you to:

Meet at least the minimum recruitment efforts required for NOC C and D occupations.
Consult with the local union to determine if the position is covered under a collective agreement.
Cover all recruitment costs related to the hiring of the foreign worker.
Sign an employment contract outlining wages, duties, and conditions related to the transportation, accommodation, and health and occupational safety of the foreign worker.
Pay the transportation costs for the worker to travel from his/her country of permanent residence to the location of work in Canada and for the return to the country of permanent residence.
Offer wages that are equal or higher than the prevailing wage rate paid to Canadians in the same occupation and region. In an unionized environment, offer the same wage rate as established under the collective bargaining agreement. In cases where benefits are offered to Canadians, extend those same benefits to the temporary foreign worker. In order to address unique circumstances, HRSDC/Service Canada maintains the right to set the prevailing wage rate.
Agree to review and adjust (if necessary) the worker's wages after 12 months of employment to ensure the worker continues to receive the prevailing wage rate of the occupation and region where he/she is employed.
Help the worker find suitable, affordable accommodation.
Provide medical coverage until the worker is eligible for provincial health insurance coverage.
Register your worker under the appropriate provincial workers compensation/workplace safety insurance plans.
Step-by-step checklist

You may hire a temporary foreign worker to work in Canada in National Occupation Classification C and D skill level occupations for up to a maximum of 24 months.

If you want to hire a temporary foreign worker for C and D occupations, you must:

Complete and submit the LMO application to the Service Canada Centre nearest to where the foreign worker will be employed. NEW
Note:
Employers must pay a processing fee of $275 for each position requested. The LMO - Processing Fee Payment form is included in the application
Schedule A - Appointment of a Third Party Representative (EMP5575) (if applicable).
Schedule B - Impact on the Canadian Labour Market (EMP5578) (if applicable).
A Certificate of Registration is required before you apply for an LMO if you want to hire foreign workers in Manitoba. You can register online with the province. For more information on the Manitoba's new Worker Recruitment and Protection Act, consult the Questions and Answers.

Complete and sign an employment contract (PDF version 25 KB) lower-skilled employment contract)
If you receive a positive LMO, you must:

Forward a copy of the HRSDC/Service Canada confirmation letter and signed employment contract to the foreign worker.
Ask the worker to sign the employment contract and apply to CIC for a work permit. The worker must include the confirmation letter and employment contract when he/she applies. CIC decides whether the foreign worker will receive a work permit according to the criteria to work and reside temporarily in Canada.
Some countries may require that their citizens meet certain conditions if they want to work in Canada (e.g. approval to leave the country, employer to pay transportation costs and/or medical coverage). Ask the foreign worker to verify if additional conditions apply in his/her country, contact the country's consulate in Canada or check its website to find out if you must meet additional requirements.

You must apply for a new LMO if you anticipate that your human resource needs will continue beyond the period covered by a work permit. Your application should be sent at least four months prior to the expiry of the work permit to ensure HRSDC/Service Canada has sufficient time to process your application and CIC to process the work permit extension.

Date modified:2013-10-15

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