Express Entry and the Need for an LMIA – Permanent vs. Temporary LMIA
In order to qualify for Express Entry, foreign workers must first qualify under one of the existing pathways to permanent residence: Federal Skilled Worker (“FSW”); Canadian Experience Class (“CEC”); or Federal Skilled Trade (“FST”) or be nominated by a participating Provincial Nomination Program (PNP). Foreign workers are then assessed based on their age, education, language skills, work experience, and whether they have either a provincial nomination or job offer in Canada supported by a Labour Market Impact Assessment (“LMIA”) (formerly known as a Labour Market Opinion (“LMO”). Candidates with a provincial nomination under Express Entry or a job offer supported by an LMIA are awarded an additional 600 points. Based on this information, which is populated into the Express Entry profile, foreign workers are then given a score and ranked in the Comprehensive Ranking System (CRS) against other candidates.
Since January 2015, the draws have pulled candidates with progressively lower scores. Most recently, on April 17, 2015, 715 candidates with a minimum Comprehensive Ranking Score of 453 were drawn and given Invitations to Apply for permanent residence. As a result of the additional 600 points granted for an LMIA, candidates with an LMIA are virtually guaranteed that they will rank high enough to be drawn and given an Invitation to Apply (ITA). Consequently, employers with foreign workers who do not require LMIAs but who need additional points to qualify or whose work permits will soon expire and who will need an LMIA should complete a Permanent LMIA application.
Foreign Workers who require an LMIA
Employers of High-Skilled foreign workers who require an LMIA can choose to complete either a Temporary LMIA or a Permanent LMIA application. A Temporary LMIA application requires that the employer provide less supporting documents from the Canada Revenue Agency. A Temporary LMIA application must also include a Transition Plan explaining how the employer intends to transition their work force and the foreign worker’s position to Canadians or permanent residents. The Transition Plan must include concrete examples of the employer’s plans. Should the employer be subjected to an Employer Compliance Review (ECR) or should they submit additional LMIA applications in the future, they will be required to prove how they completed the Activities on their Transition Plan as well as how these Activities decreased their dependence on foreign workers. Currently, a Temporary LMIA can also be used to support permanent residence under Express Entry so long as the employer provides proof of the permanent nature of the position.
It should be noted that the advertising requirements for both Temporary and Permanent LMIA applications are the same.
In the alternative, employers can choose to complete a Permanent LMIA or a Dual Intent LMIA. A Dual Intent LMIA can be in support of both a work permit and an application for permanent residence, whereas the Permanent LMIA application is solely for the purpose of supporting a foreign worker’s application for permanent residence. It should be noted that currently the Permanent LMIA and Dual Intent LMIA are filed using the same form (Permanent LMIA) and are distinguished based on the box checked at the top of the form noting the purpose of the LMIA.
The Permanent LMIA application filed exclusively to support a permanent residence application is fee exempt, meaning that the employers are not required to submit the $1000 government-processing fee. However, when applying for a Dual Intent LMIA to support both a work permit and an application for permanent residence, the government-processing fee of $1000 per foreign worker is payable. To confirm, employers do not need to pay the LMIA fee or complete the fee payment form that is contained in the application form when the sole purpose for seeking the Permanent LMIA is to support an application for permanent residence.
The Permanent LMIA requires that the employer provide substantially more documentation from the Canada Revenue Agency, such as the 12 previous PD7As. The employer must also explain in concrete terms how they are supporting their employee’s application for permanent residence and under what program their employee qualifies (FSW, CEC or FST).
Prospective employees can submit their Express Entry profile prior to the employer’s submission of the LMIA. Once the employer receives the positive LMIA, the employee can modify their Express Entry profile to reflect that they have a job offer in Canada by including the LMIA information (number, date of issue and date of expiry) to gain the additional 600 points. It should be noted that Express Entry candidates without an LMIA are required to register their profile with the ESDC National Job Bank and with the Job Bank’s Job Matching service in order to activate their Express Entry profile.
LMIA Exempt Foreign Workers
Employers of LMIA exempt foreign workers such as NAFTA Professionals, Intra-Company Transferees and Post-Graduate Work Permit holders, can choose to file a Permanent LMIA application in order to assist their employees in getting an additional 600 points. As these foreign workers do not require the LMIA for their work permit, employers can file the Permanent LMIA application solely to support a foreign worker’s application of permanent residence. As mentioned above, these Permanent LMIA applications are fee exempt for employers. However, the employer must still comply with EDSC’s advertising requirements, regardless of whether the foreign worker is already employed in the position in Canada.
Foreign workers employed in Canada can submit their Express Entry profile prior to the employer’s submission of the LMIA. Once the employer receives the positive LMIA, the employee can update their profile to reflect the fact that they have a job offer in Canada that is supported by a LMIA along with the LMIA confirmation number (and related details) to augment their profile with the additional 600 points. Employees without an LMIA supported job offer are deemed by CIC not to have a job offer for the purposes of Express Entry and are not eligible for the 600 additional points. It should be noted that Express Entry candidates without an LMIA supported job offer will be required to register with the National Job Bank and the Job Bank’s Job Matching service in order to activate their Express Entry profile.
The lawyers of Capelle Kane attentively follow the changes and updates to the Express Entry program and to the requirements for Labour Market Impact Assessments to provide our clients with the most up-to-date information available.