Express Entry and the Need for an LMIA & Permanent vs. Temporary LMIAs (an update)
In light of the November 19, 2016 changes to Express Entry I am updating my April 24, 2015 blog post 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 a Qualifying Offer of Arranged Employment in Canada. Based on this information, which is populated into their Express Entry profile, foreign workers are then given a score and ranked in the Comprehensive Ranking System (CRS) against other candidates.
Express Entry candidates with a Qualifying Offer of Arranged Employment are awarded additional point based on their National Occupational Classification (NOC). Candidates with a qualifying offer in NOC skill level 0, A, or B are awarded an additional 50 points while candidates with NOC skill level 00 (senior managerial/executive) qualifying offers are awarded an additional 200 points.
A Qualifying Offer of Arranged Employment is defined as
- Holding an Offer of Employment + an LMIA; or
- Holding an LMIA/LMO supported work permit + an Offer of Employment in a NOC Skill level 0, A, or B; or
- Holding an LMIA exempt employer specific work permit + an Offer of Employment + have at least one (1) year full-time or equivalent in part-time experience, over a continuous period of work for the employer who made the offer
- IRPR 204(a) or (c) or 205 work permits include NAFTA Professionals, Intra-Company Transferees, Significant Benefit, Canada Research Chairs, Francophone Mobilité, etc; or
- Holding an offer of continuous full-time employment for at least one year after obtaining permanent resident status in a skilled trade occupation:
- Offer of employment is supported by an LMIA; or
- Foreign worker holds an LMIA supported work permit in a skilled trade occupation + an Offer of Employment; or
- Holding an LMIA exempt employer specific work permit issued under IRPR 204(a) or (c) or 205 + an Offer of Employment + have at least one (1) year full-time or equivalent in part-time experience, over a continuous period of work for the employer who made the offer
Since January 2015, the draws have pulled candidates with progressively lower scores. Most recently, candidates with a minimum Comprehensive Ranking Scores in the 430 range have been drawn and given Invitations to Apply for permanent residence. The additional 50/200 points granted for a qualifying offer of employment can improve a candidate’s chance of selection.
Permanent/Dual Intent vs. Temporary LMIAs
Employers of High-Skilled foreign workers who require an LMIA can choose to complete either a Temporary LMIA or a Permanent LMIA application. It should be noted that the advertising requirements for both Temporary and Permanent LMIA applications for high wage workers are the same.
A Temporary LMIA application requires that the employer provide less supporting documents from the Canada Revenue Agency and 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 subject to an Employer Compliance Review (ECR) or Inspection or should they submit additional LMIA applications in the future, they will be required to prove that they completed the activities on their Transition Plan as well as how these activities decreased their dependence on foreign workers. A Temporary LMIA, or a work permit based on 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.
In the alternative, employers can choose to complete a Permanent 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. Permanent and Dual Intent LMIAs are filed using the same form (Hire a Skilled Foreign Worker) and are distinguished based on the box checked at the top of the form noting the purpose of the LMIA. Employers must have been in business for a minimum of 1 year in order to be eligible to apply for a Permanent or Dual Intent LMIA.
The Permanent LMIA application filed exclusively to support a permanent residence application is fee exempt, meaning that 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 applies. 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 slightly 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). Employers support for an employee’s application for permanent residence can be limited to providing a letter confirming their permanent, indeterminate employment.
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 50/200 points.
LMIA Exempt Foreign Workers
Employers of LMIA exempt foreign workers such as NAFTA Professionals, Intra-Company Transferees and International Experience Class (IEC) Young Professionals, can choose to file a Permanent LMIA application in order to assist their employees in getting an additional 50 points before they have obtained one year of experience on an employer specific work permit. 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 for permanent residence. As mentioned above, these Permanent LMIA applications are fee exempt for employers. However, the employer must still comply with EDSC’s stringent advertising requirements, regardless of whether the foreign worker is already employed in the position in Canada.
Post Graduation Work Permit (PGWP), International Experience Class (IEC) Working Holiday, and Open Work Permit holders do not hold employer specific work permits and as such do not have a qualifying offer of arranged employment for the purpose of Express Entry. As they, foreign workers on open work permits require an LMIA in order to obtain additional points for having a qualifying offer of arranged employment.
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 50/200 points.
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.