SERVICE CANADA: MAKING A SILK PURSE OUT OF A SOW'S EAR â¦
THE CANADIAN BAR ASSOCIATION 2008 CITIZENSHIP & IMMIGRATION LAW CONFERENCE
Niagara-on-the-Lake, Ontario May 15-17, 2008
SERVICE CANADA: CRAFTING A SILK PURSE OUT OF A SOW’S EAR …
Wendy A. Danson McCuaig Desrochers LLP 2401 TD Tower 10088 - 102 Avenue Edmonton, AB T5J 2Z1 Phone: (780)426-4660 Fax: (780)426-0982 e-mail: [email protected]
TABLE OF CONTENTS
I.
Introduction ........................................................................................1
II.
Background: The Immigration Act .....................................................1
III.
The Immigration and Refugee Protection Act.....................................2
IV.
Programs Available Through Service Canada ...................................5 Applications for Labour Market Opinions ...................................5 Blanket Applications (or Pre-Approvals).....................................8 Regional Occupations Under Pressure Lists..............................9 Low Skilled Worker Pilot ..........................................................10 Expedited Labour Market Opinion (E-LMO) Pilot .....................11 LMO Extension Requests.........................................................13 Special Industry Sectors ..........................................................14 Temporary Foreign Worker Programs Not Discussed..............15
V.
Court Challenges Against Service Canada ......................................16
VI
Conclusions and Recommendations ................................................16
Postscript ................................................................................................18 VII. Bibliography and References ...........................................................19
I.
INTRODUCTION
With the introduction of the Immigration and Refugee Protection Act (“IRPA”)1 and its Regulations ("Regulations")2 on June 28, 2002, representing companies and Temporary Foreign Workers (“TFWs”) became a significant practice area for corporate immigration lawyers, and others. In the past 6 years, the policies and procedures for doing so have become more diverse and more complex. Corporate immigration lawyers have not only had to learn the new avenues available for bringing TFWs to Canada, we have also had to constantly be on guard for the ad hoc introduction of new projects and programs as the Federal Government strives to realign its overburdened and unresponsive system for processing immigrants and temporary foreign workers.
II.
BACKGROUND: THE IMMIGRATION ACT
Under the Immigration Act3, the predecessor to IRPA, applicants for permanent residence in Canada were assessed, for the most part, based upon occupational demand as established by the Federal Government. The Government devised a "General Occupations List" which controlled the types of prospective immigrants who could make independent applications for permanent residence in Canada. Over time, this approach failed as the General Occupations List was not up-dated to effectively reflect changing demands for immigrants. Application backlogs existed even then, but were considered a necessary part of the program in order to build up an inventory of 1 2 3
S.C 2001, c. 27 SOR/2002-227 R.S.C. 1985, c. I-2, as amended
2 prospective immigrants from which the numbers identified to Parliament could be selected4.
Temporary Foreign Workers existed and were admitted to Canada under the Immigration Act, but the requirements for entry were manageable and often, entries were ruled upon by Immigration Officers at the Borders or Visa Officers abroad who clothed with a fair degree of discretion to approve the entry of TFWs into Canada.
III.
THE IMMIGRATION AND REFUGEE PROTECTION ACT
IRPA introduced a new direction for bringing economic immigrants to Canada. Under IRPA, the system for Permanent Residence applications based on the General Occupations List was replaced by a Skilled Worker Program5 (a misnomer which this writer identified over 4 years ago). This program, while still based upon a points system as was its predecessor, shifted the assessment from skills to one based upon attracting the "best and the brightest" immigrants to Canada. The fact that a prospective immigrant’s background training or experience might not necessarily reflect the economic demands of the Canadian economy did not matter to the policy gurus, as the underpinnings of the new Skilled Worker program were to identify immigrants with advanced education, good language skills in English or French, and good work experience. These individuals, it was postulated, had the best chance to become
4
5
IRPA, s. 94; see for example, Immigration Levels Plan 2008, Annual Report to Parliament on Immigration, 2007, Citizenship and Immigration Canada, Ministry of Public Works and Government Services Canada, Ottawa ON, p. 9 Regulations, Part 6, ss. 73-86
3 successfully established in Canada, regardless of their vocations, and even if they did not reach their occupational potential in Canada due to language or credential issues, it was anticipated their children, educated in Canada, would. The prerequisite to participate in this program was that the prospective immigrant’s occupation must fall within the broad National Occupational Classification6 categories of O, A, or B.
With the opening up of the occupational groups in which applicants could now make applications for permanent residence, along with a points benchmark, initially set at a high of 75, and then reduced to 67, there was a deluge of applications for Permanent Residence resulting in an inventory far surpassing the cushion anticipated to meet announced immigration levels. Yet the "applications backlog" as it is known does not necessarily reflect, and is too cumbersome to respond to, the immediate skills demands.
To address the demands for workers where the immediate skills shortages were not met by the new Skilled Worker program, IRPA provided for a beefed up system for Temporary Foreign Workers who required Work Permits to work in Canada. It was anticipated that TFWs would be eligible for Work Permits following a quick assessment of the Canadian labour market to ensure there would be at least a neutral, if not positive, impact on Canadian workers.7 The Regulations specifically named the Department of Human Resources Development as the department responsible for doing
6 7
http://www5.hrsdc.gc.ca/NOC-CNP/app/index.aspx?lc=E R. 198, 203
4 this assessment. After addressing the factors set out in the Regulations8, and confirming an LMO, HRSD would give the nod to Immigration officials to allow the entry of these TFWs. However, this program too was limited to professions in the NOC O, A, and B categories.
As practitioners were adapting to these statutory changes, a new economic boom was unfolding in the Western Provinces. Influxes of capital were entering the country spurring development, primarily in British Columbia and Alberta. As students of economics will recall, the classical factors of production under capitalism are three: land, labour and capital. The Land and Capital were in abundant supply: but the Canadian workforce, even when complemented by the entry of some 250,000 Skilled Worker Immigrants each year was unable to meet this sudden demand for labour. Additionally, the labour shortage was most acute not in the NOC O, A, and B groups but amongst lower skilled labour, those jobs falling within the NOC C and D groupings.
So, while capital could traverse Canadian borders in the billions of dollars in nanoseconds, the entry of foreign labour, controlled by an outmoded program, could only be addressed on an individual-by-individual basis.
With the Skilled Worker program unresponsive, the Temporary Foreign Worker Program became the program of choice to respond to these economic exigencies. Before long, the Temporary Foreign Worker program too was unequipped to deal with the flood of demands on it. For these reasons, we have seen and continue to experience continually 8
ibid
5 changing programs and procedures and the introduction of new programs through HRSDC. Most of these programs are delivered through the Service Canada “storefronts” established by the Federal Government in an effort to improve service to the public.
IV.
PROGRAMS AVAILABLE THROUGH SERVICE CANADA
This paper will briefly canvass the different programs available for Temporary Foreign Workers (“TFWs”) through Service Canada. The comments below have been gained through available resources and the writer’s own experiences. For specific details, readers are advised to go directly to program resources and policy manuals.9
1.
Applications for Labour Market Opinions10
As stated above, this program was introduced under IRPA, and, was anticipated to be the only program that would be required through HRSD to bring in TFWs. While that is no longer the case, and never really was, and while many other programs have been instituted to address demands for foreign labour, this program still remains the mainstay for companies and other employers to be able to bring TFWs to Canada. It operates as an Employer sponsored application process to obtain a Labour Market Opinion
9
10
The reader should keep in mind that this writer may have a slight bias based upon her primary experience being with Service Canada's Foreign Worker Program in Alberta http://www.hrsdc.gc.ca/en/workplaceskills/foreign_workers/temp_workers.shtml
6 Confirmation (”LMO”) for specifically named individuals who, once provided with the LMO, can make an application abroad for a Work Permit to enter and work in Canada.
Tips •
Check to see whether job classification is on Regional Occupations List for the particular province: each province has a different list and advertising requirements differ where the job is on the list (see more on this below)
•
Advertise well in advance of submitting application
•
Chart responses from advertising, interviews conducted, reasons any Canadians or permanent residents are not hired
•
Show advertising efforts in First Nations’ communities, high unemployment provinces, or in areas of recent plant closures
•
Make application well in advance of requirements for TFW (where possible)
•
Applications can be made on-line
•
Obtain “No Objection” letter from Union, if applicable, prior to submitting TFW application
•
Employer listed on application must be actual end employer, not labour broker
•
Obtain credentials certification, licensing, or waivers from relevant provincial authority prior to submitting TFW application
7 •
Cross reference wage rates being offered with government on-line resources11 TP
PT
Traps •
Do not include more than one NOC classification on each application
•
It is not necessary to sign third party acknowledgement where employer has already signed
•
Don’t forget to include Appointment of Representative form
•
Be aware of restrictions on Labour Brokers you may represent and potential dilemmas to which you expose yourself when representing a Labour Broker who offends relevant provincial legislation12 TP
•
PT
Be cautious not to limit location of work too narrowly: for example, if work will be based out of the head office, but requires travel throughout the province, be sure to note this
•
Expect to see “enforcement officers” from Service Canada before long to monitor Employer compliance with LMOs
•
Substitution of named individuals on previously granted LMOs (either application for Work Permit was rejected or Foreign Worker is not coming): practice varies here, but the writer’s experience is that if the LMO has not been used by the named Foreign Worker, it can be changed to a new potential TFW. Processing times to do this are in the range of 4 to 5 weeks
11 TP
PT
TP
12 PT
http://www.labourmarketinformation.ca/standard.asp? ppid=43&lcode=E&prov=&gaid=&occ=&search_key=1&pre_sel_criteria=0 In Alberta, regulations under the Fair Trading Act, R.S.A. 2000, F-2, are explicit that labour brokers (referred to as Employment Agencies) cannot charge fees to prospective employees for obtaining employment for them and risk penalties where they do
8 •
Concurrent Processing of LMO Application and Work Permits: this is available for Skilled Worker applicants only, not those in the Low Skilled Worker Program13 TP
2.
PT
Blanket Applications (or Pre-Approvals)
This application process is used where the employer is requesting LMO approval prior to knowing the specific individuals who will be brought in under the LMOs. Where application times have reached 5 to 6 months, having these pre-approvals saves time when specific individuals are eventually identified for the position. Once the individuals are subsequently identified, the Employer then files information of the TFW(s) and is issued the LMO within, in Alberta at this time, 4 to 6 weeks. This will likely differ in the east.
Tips •
Request wherever possible to avoid having to file repeat applications for the same job classification
•
Submit subsequent specific Foreign Worker information in bulk to expedite processing
Traps •
Note expiry date on Pre-Approval in diary system to renew, if necessary, prior to expiry
TP
13 PT
CIC Operational Instructions, "Initiating Processing on Request for Temporary Foreign Worker Applicants pending Labour Market Opinions", February 28, 2007, attached
9 •
Applications for 50 or more LMOs are not processed locally. These are sent to the National Headquarters in Ottawa for finalization. This adds time to processing.
3.
Regional Occupations Under Pressure Lists14 TP
PT
These have been developed by each of seven provinces in conjunction with HRSD (AB, BC, MB, NS, ON, PEI, QC) and reflect the changing demands for specific types of foreign workers in these provinces. Skilled Worker positions on the list require only 7 calendar days’ advertising on the Canada Job Bank or other evidence of ongoing recruitment. Low Skilled Worker positions on the list require both.
Tips •
Don’t forget to check to see if TFW occupation is on Regional Occupations List
•
Make sure you check for up-dates to Regional Occupations Lists on-line
•
Note provincial variations on Regional Occupations List
•
Note different advertising requirements where job is not on Regional
Traps
Occupations List, including provincial/territorial Job Banks in SK, NT, and QC
TP
14 PT
http://www.hrsdc.gc.ca/en/workplaceskills/foreign_workers/occunderpres.shtml HTU
UTH
10 •
Don’t assume expedited processing just because occupation is on Regional Occupations List: this is not the case. The only benefit is reduced advertising requirements at the front end
4.
Low Skilled Worker Pilot15 TP
PT
As both the Skilled Worker program and the Temporary Foreign Worker program do not allow applications from individuals in the NOC Groups C and D, and as there was (and continues to be) a heavy demand for workers in these categories, the Federal Government introduced the Pilot Project for Occupations Requiring Lower Levels of Formal Training (NOC C and D). More commonly referred to as the Low Skilled Worker Project, it came into effect shortly after the implementation of IRPA in 2002. While still referred to as a pilot project, the Low Skilled Worker program has developed its own momentum and continues to meet a major demand for workers in these two occupational groupings. In February, 2007, the one year maximum period for LMO issuance under this program was extended to 2 years. Unfortunately, there has not been the concomitant change to the Skilled Worker Program to allow these workers to apply for permanent residence.
Tips •
Be aware of the specific requirements of this program which require contractual commitments, in writing, from the employer including return airfare from and to country of residence, employer’s commitment to
TP
15 PT
http://www.hrsdc.gc.ca/en/workplaceskills/foreign_workers/lowskill.shtml
11 ensure affordable accommodation (no greater than 30% of the employee's salary), and provision of health care until provincial coverage kicks in •
Consider applying to upgrade Low-Skilled TFW into NOC O, A or B if combination of Canadian experience and job requirements will support this to allow for TFW to make application for Permanent Residence
•
In Alberta, check to see whether job is on PNP’s “Semi-Skilled Worker” list: this allows certain listed NOC C & D Workers in over 35 classifications to apply for permanent residence as a Provincial Nominee.
Traps •
Be aware of period for which LMO confirmation is granted, and if for one year only, make new recruitment efforts and request extension prior to expiry
•
Be aware of requirement for 4 month break prior to renewal of LMO for same Low Skilled Worker
•
Be ready for potential problems with overseas Visa Offices refusing to issue Work Permits to Low Skilled Workers even where LMOs are granted
5.
Expedited Labour Market Opinion (E-LMO) Pilot 16 TP
PT
The E-LMO program was introduced in late September, 2007 for British Columbia and Alberta in response to the growing delay in processing Labour Market Opinion applications, which were now taking some 5 to 6 months to process! Policy makers surely could have seen the inefficiencies of a program that requires applications to be
TP
16 PT
http://www.hrsdc.gc.ca/en/workplaceskills/foreign_workers/elmopp/elmo.shtml
12 processed employer by employer, classification by classification, individual by individual, not to mention that even when the LMO is finally issued, there is a limited time (sometimes just months) for utilization of the LMO itself, and a further limited time for the length of time a Work Permit based on the LMO could be granted, all requiring repeat requests for changes and renewals to Service Canada. In Alberta and British Columbia, the Foreign Worker Program became a bureaucratic nightmare, compounded by the Federal Government’s reticence, until recently, to put more resources into it.
The E-LMO program was introduced as a 12 month pilot only and is still in its early stages. It is designed to take out any necessity for discretionary thinking or analysis. It applies an assembly line procedure to the review and approval of LMOs in certain listed occupational groups. It is a two-step process which looks first at the employer to determine whether the employer is a viable business entity with sufficient resources to support the costs and obligations of bringing foreign workers to Canada. The second step of the E-LMO process addresses the terms and conditions offered to the foreign workers for whom LMO requests are being processed. To receive approval, all conditions must comply with pre-established wage rates and guidelines. The stated advantage of this rigid process is a quick turn-around time (5 days at each step).
Tips •
An employer can seek first step approval without having an immediate intention to proceed with the second step
13 •
The Step 1 application is limited to 15 pages (3 being the formal application, SC 5414, and 12 being the supporting PD7As (no substitutes)).
•
An access code is issued to the employer, and while not given directly to legal representatives, can be used by lawyers who may file the step 2 application (SC 5415) on the employer’s behalf
•
Applications can be made on-line
•
Make sure employer authorizes third party representative in initial application
•
At time of writing this paper, only 33 occupations are on this list; keep an eye open for further additions to the list and changes to posted wage rates
•
Request can be made to add additional occupations to original employer approval at a later date (SC 5428)
Traps •
Applications that are incomplete or offering less than the listed wage rate will be rejected
•
No calls will be made or RFIs (Requests for Information) sent under this program
6.
LMO Extension Requests
This is an application to extend the LMO for a person already working in Canada whose Work Permit is about to expire and was originally based on an LMO granted by Service Canada. There is a specific form that is used for this application (EMP 5354B)
14 Tips •
Advise employer to prepare payroll records for submission to Service Canada to accompany extension request to show wage paid conforms to LMO issued
•
These applications are generally fast-tracked but can still take up to 5 to 6 weeks in Alberta
•
If pre-requisite to renewal is evidence of certification or licensing, be sure to have this prior to submitting renewal application
Traps •
Be cautious about requesting changes to terms and conditions on extension application, otherwise new application may be requested
7.
Special Industry Sectors
HRSDC has memoranda of understanding (MOUs) with over thirty different industry or special interest sectors and councils.17 Some of the MOUs negotiated contain TP
PT
provisions for special consideration in the hiring of foreign workers. Each program must be addressed independently to determine its breadth and applicability, but are worth knowing about to supplement other avenues available to TFWs. Some of the more wellknown of these sectors or programs are:18 TP
•
17 TP
HTU
UTH
18 PT
Live-In Caregiver Program
http://www.hrsdc.gc.ca/en/workplaceskills/sector_counceils/index.html
PT
TP
PT
http://www.hrsdc.gc.ca/en/workplaceskills/foreign_workers/occspec.shtml HTU
UTH
15 •
Seasonal Agriculture program
•
Film and Entertainment Sector
•
Information Technology Sector
•
Oil Sands Construction Projects in Alberta
•
International Students graduating from Recognized Post-Secondary Institutions
One example of how HRSD has tried to meet demands in certain sectors is the recent announcement (February, 2008) that all LMO applications for doctors and registered nurses, as well as academics, are now submitted for centralized processing at the Service Canada Centre in St. John, NB. Another is that processing for Live-In Caregivers has already been centralized in Toronto.
8.
Temporary Foreign Worker Programs not discussed
•
This paper does not deal with the Temporary Foreign Worker Units (TFWUs), as they fall under the purview of Citizenship and Immigration Canada19. Nevertheless, this is an avenue available to determine whether TP
PT
the Service Canada LMO process can be by-passed at the outset •
This paper does not deal with the Temporary Foreign Worker provisions that can be found within some Provincial Nominee Programs
•
TP
19 PT
The special processing in the Province of Quebec is not addressed
http://www.cic.gc.ca/english/resources/manuals/bulletins/ob049.asp
16 •
Youth Worker Exchange Programs have not been addressed
•
This paper also does not address the Post-Graduate Student work program where qualified students may now work during their school term and winter and summer vacation periods without the necessity of an LMO.
V.
COURT CHALLENGES AGAINST SERVICE CANADA UNDER THE TEMPORARY FOREIGN WORKER PROGRAM
Simply, there have been none that the writer has been able to uncover. Due to the high costs of launching an application before the Federal Court and the temporary nature of the approvals being sought, employers are understandably hesitant to challenge the TFW program through the Court system.
VI.
CONCLUSIONS AND RECOMMENDATIONS
Service Canada and HRSDC have started to address the responsibilities accruing to them under IRPA. Both departments have also come to realize the challenges and limitations of the LMO Confirmation Process and have taken steps to alleviate the burden on the program given the economic climate in Canada, particularly in the West. The writer concedes that as many of the new initiatives are ad hoc or pilot projects, they need to be given a chance to prove their effectiveness. As with other Immigration programs, the introduction of different avenues and programs to meet different purposes and needs has proven more effective than trying to develop a single panacea for all eventualities.
17 The writer puts forward two suggestions that ought to be addressed by the Minister of Human Resources and Skills Development and the Minister of Citizenship and Immigration:
•
It is high time to allow secondary school students, who are children of Temporary Foreign Workers, to work in part-time jobs. This seems far simpler and more sensible than bringing in foreign workers to staff local coffee shops, retail stores and fast food outlets;
•
Consideration should be given to granting LMOs for longer periods and across the country. Open LMOs would obviate the need for constant refiling of LMO applications province-by-province. This latter process places Service Canada in the position of micro-managing an Employer’s Human Resources functions, something that is not the business of a TFW Program.
Finally, we live in a globalized world. Business, capital, and labour are internationally mobile. If Canada cannot compete in this globalized economy by more quickly processing the Temporary Foreign Workers who want to come to work here, we will lose well-qualified foreign workers. If business cannot attract the skilled labour it needs, we will lose capital investment as business too will go elsewhere. Whether this is a good or a bad thing is debatable and beyond the scope of this paper.
18 Postscript:
While continued change is necessary, one thing is clear to this writer: the answer is not for the Minister of Citizenship and Immigration to try and impose a "quick fix" through the use of arbitrary authority to introduce instructions for processing immigrant and TFW applications. The amendments in Bill C-50 which would enable her to do this are an anathema to Canadian Immigration law.
VII.
BIBLIOGRAPHY AND REFERENCES
1.
Immigration Act, R.S.C. 1985, c. I-2
2.
Immigration & Refugee Protection Act, S.C. 2001, c. 27
3.
Immigration & Refugee Protection Regulations, SOR/DORS/2002-227
4.
Canada's Immigration & Citizenship Bulletin, Canada's Fear of Lower Skilled Workers, Editor, James Egan, 19 Imm.& Cit.#1, February, 2008
5.
Citizenship & Immigration Canada, Foreign Worker Manual http://www.cic.gc.ca/english/resources/manuals/fw/index.asp
6.
Danson, Wendy:
Temporary Entry Under the Immigration and Refugee
Protection Act, S.C.2001, c.27, presentation to Legal Education Society of Alberta, Immigration Law Seminar, October, 2002 7.
Langford, Vance P. E.
Servicing Canada: Responding to the Skills and
Labour Shortage, presentation to CBA Immigration CLE, April, 2007 8.
Human Resources Skills Development Website: http://www.hrsdc.gc.ca/en/workplaceskills/foreign_workers/index.shtml
r
.01
Operational Instructions: 07-010 (RIM) Date: Revised 06-040 (RIM), February 28, 2007 Author: Ginette Lafleche Approval: Bruce Scoffield Category: Procedures Subject: Initiating Processing on Request for Temporary Worker Applicants, pending Labour Market Opinions (LMO). The purpose of this message is to provide visa offices guidance on initiating processing of applications for Work Permits received from temporary worker applicants awaiting Labour Market Opinions (LMO) from Service Canada (formerly Human Resources and Skills Development Canada). Given the role temporary workers play in meeting labour market needs, and given CIC's departmental objective of facilitating the entry to Canada of temporary workers to support the development of the Canadian economy, there is recognition that improvements can be made to the way work permit applications are processed. Accepting and initiating processing of the applications while awaiting LMO is one change that can be made with relative ease, and one which will have limited impact on visa office operations while being facilitative to the applicant. Globally, this program has an approval rate of over 90%. Initiating processing includes the issuance of medical instructions and forms to the applicant, and initiation of background checks and police clearances, if necessary. Please note that this guidance does not apply to applicants in the Live-in Caregiver Program, the Seasonal Agricultural Worker Program or the Pilot Project for Occupations Requiring Lower Levels of Formal Training (NOC C&D).
Under what conditions should processing be initiated for temporary worker applicant awaiting an LMO? In cases for which a visa officer does not have concerns regarding the credibility of either the employer or applicant, or the eligibility of the applicant for a work permit for the job offered, it is more efficient and more responsive to employer needs, to commence processing of the application as soon as possible after receipt. Situations which would be excluded from this facilitative approach to initiating processing of the work permit application include applications where the visa officer has prima facie concerns regarding the bona fides of the job offer or bona fides of the applicant. Prior to initiating processing of a temporary worker application awaiting LMO, certain conditions should be met. At the time of application, the applicant: •
has submitted an application for a Work Permit and has included with the application all required documents and fees, with the exception of the LMO;
•
has indicated awareness of the need for a positive LMO, and has provided a copy of the LMO application which the employer has submitted to Service Canada;
•
has provided a copy or original of the job offer in Canada , or contract, which outlines the duration and requirements of the job; appears credible and appears to meet the requirements and skills of the job being offered
•
.
2
When initiating processing of a Work Permit application pending receipt of an LMO, the visa office should: create a temporary worker file at the time a decision has been made to accept the application without an accompanying LMO; inform the applicant that processing will commence; that the issuance of medical instructions and forms does not imply the application will be approved; that medicals will be conducted "at their own risk''; and that issuance of the medical instructions and forms is a facilitative measure to speed up the total processing time; for consistency, visa offices should include the following paragraph, or facsimile thereof, in the letter which accompanies the medical instructions: ''Medical instructions are being issued at your own risk (i.e., expense) to expedite the processing of your application for a work permit; the early issuance of these instructions does not infer approval of your application. You are also reminded to submit the Labour Market Opinion (LMO) from Service Canada as soon after it has been obtained. You should submit the LMO within 90 days from date of this letter; failure to do so may result in refusal of your application. A fter 60 days, we would advise you to contact your employer to enquire about the status of the LMO application and advise the visa office if the processing of the LMO application will require more than 90 days'',enter into CAIPS notes that the early initiation of processing (which includes issuance of medical instructions) was at own risk, while awaiting receipt of the LMO from Service Canada;and upon receipt of the LMO, confirm applicant meets the requirements of the job in Canada as stated in the LMO. Section 7 of the Temporary Worker manual (Processing Temporary Foreign Workers-Documents required with application) outlines, in addition to other documents and cost recovery processing fee, an application for a Work Permit must include evidence that the eligibility criteria of R200(l)(c) are met. Examples given include job offers or contracts, HRSDC confirmation (now Service Canada confirmation), acceptance into a youth exchange program, etc. Immigration Branch (formerly Selection Branch) has confirmed that the listing of other documents such as LMO do not fall within the parameters of R10, and therefore there is no regulatory requirement for an LMO at the time of application; the application may be accepted and processing begun without a LMO. A positive LMO and related assessments must be completed prior to issuance of the work permit. If a positive LMO is not received within 90 days from the date of the medical instructions letter, and we have not received any information from the applicant, Visa Officers should proceed to assess the WP application based on available information. If you have any questions or concerns regarding this change in processing, please contact RIM/Daniel Vaughan.
Niagara-on-the-Lake, Ontario May 15-17, 2008
SERVICE CANADA: CRAFTING A SILK PURSE OUT OF A SOW’S EAR …
Wendy A. Danson McCuaig Desrochers LLP 2401 TD Tower 10088 - 102 Avenue Edmonton, AB T5J 2Z1 Phone: (780)426-4660 Fax: (780)426-0982 e-mail: [email protected]
TABLE OF CONTENTS
I.
Introduction ........................................................................................1
II.
Background: The Immigration Act .....................................................1
III.
The Immigration and Refugee Protection Act.....................................2
IV.
Programs Available Through Service Canada ...................................5 Applications for Labour Market Opinions ...................................5 Blanket Applications (or Pre-Approvals).....................................8 Regional Occupations Under Pressure Lists..............................9 Low Skilled Worker Pilot ..........................................................10 Expedited Labour Market Opinion (E-LMO) Pilot .....................11 LMO Extension Requests.........................................................13 Special Industry Sectors ..........................................................14 Temporary Foreign Worker Programs Not Discussed..............15
V.
Court Challenges Against Service Canada ......................................16
VI
Conclusions and Recommendations ................................................16
Postscript ................................................................................................18 VII. Bibliography and References ...........................................................19
I.
INTRODUCTION
With the introduction of the Immigration and Refugee Protection Act (“IRPA”)1 and its Regulations ("Regulations")2 on June 28, 2002, representing companies and Temporary Foreign Workers (“TFWs”) became a significant practice area for corporate immigration lawyers, and others. In the past 6 years, the policies and procedures for doing so have become more diverse and more complex. Corporate immigration lawyers have not only had to learn the new avenues available for bringing TFWs to Canada, we have also had to constantly be on guard for the ad hoc introduction of new projects and programs as the Federal Government strives to realign its overburdened and unresponsive system for processing immigrants and temporary foreign workers.
II.
BACKGROUND: THE IMMIGRATION ACT
Under the Immigration Act3, the predecessor to IRPA, applicants for permanent residence in Canada were assessed, for the most part, based upon occupational demand as established by the Federal Government. The Government devised a "General Occupations List" which controlled the types of prospective immigrants who could make independent applications for permanent residence in Canada. Over time, this approach failed as the General Occupations List was not up-dated to effectively reflect changing demands for immigrants. Application backlogs existed even then, but were considered a necessary part of the program in order to build up an inventory of 1 2 3
S.C 2001, c. 27 SOR/2002-227 R.S.C. 1985, c. I-2, as amended
2 prospective immigrants from which the numbers identified to Parliament could be selected4.
Temporary Foreign Workers existed and were admitted to Canada under the Immigration Act, but the requirements for entry were manageable and often, entries were ruled upon by Immigration Officers at the Borders or Visa Officers abroad who clothed with a fair degree of discretion to approve the entry of TFWs into Canada.
III.
THE IMMIGRATION AND REFUGEE PROTECTION ACT
IRPA introduced a new direction for bringing economic immigrants to Canada. Under IRPA, the system for Permanent Residence applications based on the General Occupations List was replaced by a Skilled Worker Program5 (a misnomer which this writer identified over 4 years ago). This program, while still based upon a points system as was its predecessor, shifted the assessment from skills to one based upon attracting the "best and the brightest" immigrants to Canada. The fact that a prospective immigrant’s background training or experience might not necessarily reflect the economic demands of the Canadian economy did not matter to the policy gurus, as the underpinnings of the new Skilled Worker program were to identify immigrants with advanced education, good language skills in English or French, and good work experience. These individuals, it was postulated, had the best chance to become
4
5
IRPA, s. 94; see for example, Immigration Levels Plan 2008, Annual Report to Parliament on Immigration, 2007, Citizenship and Immigration Canada, Ministry of Public Works and Government Services Canada, Ottawa ON, p. 9 Regulations, Part 6, ss. 73-86
3 successfully established in Canada, regardless of their vocations, and even if they did not reach their occupational potential in Canada due to language or credential issues, it was anticipated their children, educated in Canada, would. The prerequisite to participate in this program was that the prospective immigrant’s occupation must fall within the broad National Occupational Classification6 categories of O, A, or B.
With the opening up of the occupational groups in which applicants could now make applications for permanent residence, along with a points benchmark, initially set at a high of 75, and then reduced to 67, there was a deluge of applications for Permanent Residence resulting in an inventory far surpassing the cushion anticipated to meet announced immigration levels. Yet the "applications backlog" as it is known does not necessarily reflect, and is too cumbersome to respond to, the immediate skills demands.
To address the demands for workers where the immediate skills shortages were not met by the new Skilled Worker program, IRPA provided for a beefed up system for Temporary Foreign Workers who required Work Permits to work in Canada. It was anticipated that TFWs would be eligible for Work Permits following a quick assessment of the Canadian labour market to ensure there would be at least a neutral, if not positive, impact on Canadian workers.7 The Regulations specifically named the Department of Human Resources Development as the department responsible for doing
6 7
http://www5.hrsdc.gc.ca/NOC-CNP/app/index.aspx?lc=E R. 198, 203
4 this assessment. After addressing the factors set out in the Regulations8, and confirming an LMO, HRSD would give the nod to Immigration officials to allow the entry of these TFWs. However, this program too was limited to professions in the NOC O, A, and B categories.
As practitioners were adapting to these statutory changes, a new economic boom was unfolding in the Western Provinces. Influxes of capital were entering the country spurring development, primarily in British Columbia and Alberta. As students of economics will recall, the classical factors of production under capitalism are three: land, labour and capital. The Land and Capital were in abundant supply: but the Canadian workforce, even when complemented by the entry of some 250,000 Skilled Worker Immigrants each year was unable to meet this sudden demand for labour. Additionally, the labour shortage was most acute not in the NOC O, A, and B groups but amongst lower skilled labour, those jobs falling within the NOC C and D groupings.
So, while capital could traverse Canadian borders in the billions of dollars in nanoseconds, the entry of foreign labour, controlled by an outmoded program, could only be addressed on an individual-by-individual basis.
With the Skilled Worker program unresponsive, the Temporary Foreign Worker Program became the program of choice to respond to these economic exigencies. Before long, the Temporary Foreign Worker program too was unequipped to deal with the flood of demands on it. For these reasons, we have seen and continue to experience continually 8
ibid
5 changing programs and procedures and the introduction of new programs through HRSDC. Most of these programs are delivered through the Service Canada “storefronts” established by the Federal Government in an effort to improve service to the public.
IV.
PROGRAMS AVAILABLE THROUGH SERVICE CANADA
This paper will briefly canvass the different programs available for Temporary Foreign Workers (“TFWs”) through Service Canada. The comments below have been gained through available resources and the writer’s own experiences. For specific details, readers are advised to go directly to program resources and policy manuals.9
1.
Applications for Labour Market Opinions10
As stated above, this program was introduced under IRPA, and, was anticipated to be the only program that would be required through HRSD to bring in TFWs. While that is no longer the case, and never really was, and while many other programs have been instituted to address demands for foreign labour, this program still remains the mainstay for companies and other employers to be able to bring TFWs to Canada. It operates as an Employer sponsored application process to obtain a Labour Market Opinion
9
10
The reader should keep in mind that this writer may have a slight bias based upon her primary experience being with Service Canada's Foreign Worker Program in Alberta http://www.hrsdc.gc.ca/en/workplaceskills/foreign_workers/temp_workers.shtml
6 Confirmation (”LMO”) for specifically named individuals who, once provided with the LMO, can make an application abroad for a Work Permit to enter and work in Canada.
Tips •
Check to see whether job classification is on Regional Occupations List for the particular province: each province has a different list and advertising requirements differ where the job is on the list (see more on this below)
•
Advertise well in advance of submitting application
•
Chart responses from advertising, interviews conducted, reasons any Canadians or permanent residents are not hired
•
Show advertising efforts in First Nations’ communities, high unemployment provinces, or in areas of recent plant closures
•
Make application well in advance of requirements for TFW (where possible)
•
Applications can be made on-line
•
Obtain “No Objection” letter from Union, if applicable, prior to submitting TFW application
•
Employer listed on application must be actual end employer, not labour broker
•
Obtain credentials certification, licensing, or waivers from relevant provincial authority prior to submitting TFW application
7 •
Cross reference wage rates being offered with government on-line resources11 TP
PT
Traps •
Do not include more than one NOC classification on each application
•
It is not necessary to sign third party acknowledgement where employer has already signed
•
Don’t forget to include Appointment of Representative form
•
Be aware of restrictions on Labour Brokers you may represent and potential dilemmas to which you expose yourself when representing a Labour Broker who offends relevant provincial legislation12 TP
•
PT
Be cautious not to limit location of work too narrowly: for example, if work will be based out of the head office, but requires travel throughout the province, be sure to note this
•
Expect to see “enforcement officers” from Service Canada before long to monitor Employer compliance with LMOs
•
Substitution of named individuals on previously granted LMOs (either application for Work Permit was rejected or Foreign Worker is not coming): practice varies here, but the writer’s experience is that if the LMO has not been used by the named Foreign Worker, it can be changed to a new potential TFW. Processing times to do this are in the range of 4 to 5 weeks
11 TP
PT
TP
12 PT
http://www.labourmarketinformation.ca/standard.asp? ppid=43&lcode=E&prov=&gaid=&occ=&search_key=1&pre_sel_criteria=0 In Alberta, regulations under the Fair Trading Act, R.S.A. 2000, F-2, are explicit that labour brokers (referred to as Employment Agencies) cannot charge fees to prospective employees for obtaining employment for them and risk penalties where they do
8 •
Concurrent Processing of LMO Application and Work Permits: this is available for Skilled Worker applicants only, not those in the Low Skilled Worker Program13 TP
2.
PT
Blanket Applications (or Pre-Approvals)
This application process is used where the employer is requesting LMO approval prior to knowing the specific individuals who will be brought in under the LMOs. Where application times have reached 5 to 6 months, having these pre-approvals saves time when specific individuals are eventually identified for the position. Once the individuals are subsequently identified, the Employer then files information of the TFW(s) and is issued the LMO within, in Alberta at this time, 4 to 6 weeks. This will likely differ in the east.
Tips •
Request wherever possible to avoid having to file repeat applications for the same job classification
•
Submit subsequent specific Foreign Worker information in bulk to expedite processing
Traps •
Note expiry date on Pre-Approval in diary system to renew, if necessary, prior to expiry
TP
13 PT
CIC Operational Instructions, "Initiating Processing on Request for Temporary Foreign Worker Applicants pending Labour Market Opinions", February 28, 2007, attached
9 •
Applications for 50 or more LMOs are not processed locally. These are sent to the National Headquarters in Ottawa for finalization. This adds time to processing.
3.
Regional Occupations Under Pressure Lists14 TP
PT
These have been developed by each of seven provinces in conjunction with HRSD (AB, BC, MB, NS, ON, PEI, QC) and reflect the changing demands for specific types of foreign workers in these provinces. Skilled Worker positions on the list require only 7 calendar days’ advertising on the Canada Job Bank or other evidence of ongoing recruitment. Low Skilled Worker positions on the list require both.
Tips •
Don’t forget to check to see if TFW occupation is on Regional Occupations List
•
Make sure you check for up-dates to Regional Occupations Lists on-line
•
Note provincial variations on Regional Occupations List
•
Note different advertising requirements where job is not on Regional
Traps
Occupations List, including provincial/territorial Job Banks in SK, NT, and QC
TP
14 PT
http://www.hrsdc.gc.ca/en/workplaceskills/foreign_workers/occunderpres.shtml HTU
UTH
10 •
Don’t assume expedited processing just because occupation is on Regional Occupations List: this is not the case. The only benefit is reduced advertising requirements at the front end
4.
Low Skilled Worker Pilot15 TP
PT
As both the Skilled Worker program and the Temporary Foreign Worker program do not allow applications from individuals in the NOC Groups C and D, and as there was (and continues to be) a heavy demand for workers in these categories, the Federal Government introduced the Pilot Project for Occupations Requiring Lower Levels of Formal Training (NOC C and D). More commonly referred to as the Low Skilled Worker Project, it came into effect shortly after the implementation of IRPA in 2002. While still referred to as a pilot project, the Low Skilled Worker program has developed its own momentum and continues to meet a major demand for workers in these two occupational groupings. In February, 2007, the one year maximum period for LMO issuance under this program was extended to 2 years. Unfortunately, there has not been the concomitant change to the Skilled Worker Program to allow these workers to apply for permanent residence.
Tips •
Be aware of the specific requirements of this program which require contractual commitments, in writing, from the employer including return airfare from and to country of residence, employer’s commitment to
TP
15 PT
http://www.hrsdc.gc.ca/en/workplaceskills/foreign_workers/lowskill.shtml
11 ensure affordable accommodation (no greater than 30% of the employee's salary), and provision of health care until provincial coverage kicks in •
Consider applying to upgrade Low-Skilled TFW into NOC O, A or B if combination of Canadian experience and job requirements will support this to allow for TFW to make application for Permanent Residence
•
In Alberta, check to see whether job is on PNP’s “Semi-Skilled Worker” list: this allows certain listed NOC C & D Workers in over 35 classifications to apply for permanent residence as a Provincial Nominee.
Traps •
Be aware of period for which LMO confirmation is granted, and if for one year only, make new recruitment efforts and request extension prior to expiry
•
Be aware of requirement for 4 month break prior to renewal of LMO for same Low Skilled Worker
•
Be ready for potential problems with overseas Visa Offices refusing to issue Work Permits to Low Skilled Workers even where LMOs are granted
5.
Expedited Labour Market Opinion (E-LMO) Pilot 16 TP
PT
The E-LMO program was introduced in late September, 2007 for British Columbia and Alberta in response to the growing delay in processing Labour Market Opinion applications, which were now taking some 5 to 6 months to process! Policy makers surely could have seen the inefficiencies of a program that requires applications to be
TP
16 PT
http://www.hrsdc.gc.ca/en/workplaceskills/foreign_workers/elmopp/elmo.shtml
12 processed employer by employer, classification by classification, individual by individual, not to mention that even when the LMO is finally issued, there is a limited time (sometimes just months) for utilization of the LMO itself, and a further limited time for the length of time a Work Permit based on the LMO could be granted, all requiring repeat requests for changes and renewals to Service Canada. In Alberta and British Columbia, the Foreign Worker Program became a bureaucratic nightmare, compounded by the Federal Government’s reticence, until recently, to put more resources into it.
The E-LMO program was introduced as a 12 month pilot only and is still in its early stages. It is designed to take out any necessity for discretionary thinking or analysis. It applies an assembly line procedure to the review and approval of LMOs in certain listed occupational groups. It is a two-step process which looks first at the employer to determine whether the employer is a viable business entity with sufficient resources to support the costs and obligations of bringing foreign workers to Canada. The second step of the E-LMO process addresses the terms and conditions offered to the foreign workers for whom LMO requests are being processed. To receive approval, all conditions must comply with pre-established wage rates and guidelines. The stated advantage of this rigid process is a quick turn-around time (5 days at each step).
Tips •
An employer can seek first step approval without having an immediate intention to proceed with the second step
13 •
The Step 1 application is limited to 15 pages (3 being the formal application, SC 5414, and 12 being the supporting PD7As (no substitutes)).
•
An access code is issued to the employer, and while not given directly to legal representatives, can be used by lawyers who may file the step 2 application (SC 5415) on the employer’s behalf
•
Applications can be made on-line
•
Make sure employer authorizes third party representative in initial application
•
At time of writing this paper, only 33 occupations are on this list; keep an eye open for further additions to the list and changes to posted wage rates
•
Request can be made to add additional occupations to original employer approval at a later date (SC 5428)
Traps •
Applications that are incomplete or offering less than the listed wage rate will be rejected
•
No calls will be made or RFIs (Requests for Information) sent under this program
6.
LMO Extension Requests
This is an application to extend the LMO for a person already working in Canada whose Work Permit is about to expire and was originally based on an LMO granted by Service Canada. There is a specific form that is used for this application (EMP 5354B)
14 Tips •
Advise employer to prepare payroll records for submission to Service Canada to accompany extension request to show wage paid conforms to LMO issued
•
These applications are generally fast-tracked but can still take up to 5 to 6 weeks in Alberta
•
If pre-requisite to renewal is evidence of certification or licensing, be sure to have this prior to submitting renewal application
Traps •
Be cautious about requesting changes to terms and conditions on extension application, otherwise new application may be requested
7.
Special Industry Sectors
HRSDC has memoranda of understanding (MOUs) with over thirty different industry or special interest sectors and councils.17 Some of the MOUs negotiated contain TP
PT
provisions for special consideration in the hiring of foreign workers. Each program must be addressed independently to determine its breadth and applicability, but are worth knowing about to supplement other avenues available to TFWs. Some of the more wellknown of these sectors or programs are:18 TP
•
17 TP
HTU
UTH
18 PT
Live-In Caregiver Program
http://www.hrsdc.gc.ca/en/workplaceskills/sector_counceils/index.html
PT
TP
PT
http://www.hrsdc.gc.ca/en/workplaceskills/foreign_workers/occspec.shtml HTU
UTH
15 •
Seasonal Agriculture program
•
Film and Entertainment Sector
•
Information Technology Sector
•
Oil Sands Construction Projects in Alberta
•
International Students graduating from Recognized Post-Secondary Institutions
One example of how HRSD has tried to meet demands in certain sectors is the recent announcement (February, 2008) that all LMO applications for doctors and registered nurses, as well as academics, are now submitted for centralized processing at the Service Canada Centre in St. John, NB. Another is that processing for Live-In Caregivers has already been centralized in Toronto.
8.
Temporary Foreign Worker Programs not discussed
•
This paper does not deal with the Temporary Foreign Worker Units (TFWUs), as they fall under the purview of Citizenship and Immigration Canada19. Nevertheless, this is an avenue available to determine whether TP
PT
the Service Canada LMO process can be by-passed at the outset •
This paper does not deal with the Temporary Foreign Worker provisions that can be found within some Provincial Nominee Programs
•
TP
19 PT
The special processing in the Province of Quebec is not addressed
http://www.cic.gc.ca/english/resources/manuals/bulletins/ob049.asp
16 •
Youth Worker Exchange Programs have not been addressed
•
This paper also does not address the Post-Graduate Student work program where qualified students may now work during their school term and winter and summer vacation periods without the necessity of an LMO.
V.
COURT CHALLENGES AGAINST SERVICE CANADA UNDER THE TEMPORARY FOREIGN WORKER PROGRAM
Simply, there have been none that the writer has been able to uncover. Due to the high costs of launching an application before the Federal Court and the temporary nature of the approvals being sought, employers are understandably hesitant to challenge the TFW program through the Court system.
VI.
CONCLUSIONS AND RECOMMENDATIONS
Service Canada and HRSDC have started to address the responsibilities accruing to them under IRPA. Both departments have also come to realize the challenges and limitations of the LMO Confirmation Process and have taken steps to alleviate the burden on the program given the economic climate in Canada, particularly in the West. The writer concedes that as many of the new initiatives are ad hoc or pilot projects, they need to be given a chance to prove their effectiveness. As with other Immigration programs, the introduction of different avenues and programs to meet different purposes and needs has proven more effective than trying to develop a single panacea for all eventualities.
17 The writer puts forward two suggestions that ought to be addressed by the Minister of Human Resources and Skills Development and the Minister of Citizenship and Immigration:
•
It is high time to allow secondary school students, who are children of Temporary Foreign Workers, to work in part-time jobs. This seems far simpler and more sensible than bringing in foreign workers to staff local coffee shops, retail stores and fast food outlets;
•
Consideration should be given to granting LMOs for longer periods and across the country. Open LMOs would obviate the need for constant refiling of LMO applications province-by-province. This latter process places Service Canada in the position of micro-managing an Employer’s Human Resources functions, something that is not the business of a TFW Program.
Finally, we live in a globalized world. Business, capital, and labour are internationally mobile. If Canada cannot compete in this globalized economy by more quickly processing the Temporary Foreign Workers who want to come to work here, we will lose well-qualified foreign workers. If business cannot attract the skilled labour it needs, we will lose capital investment as business too will go elsewhere. Whether this is a good or a bad thing is debatable and beyond the scope of this paper.
18 Postscript:
While continued change is necessary, one thing is clear to this writer: the answer is not for the Minister of Citizenship and Immigration to try and impose a "quick fix" through the use of arbitrary authority to introduce instructions for processing immigrant and TFW applications. The amendments in Bill C-50 which would enable her to do this are an anathema to Canadian Immigration law.
VII.
BIBLIOGRAPHY AND REFERENCES
1.
Immigration Act, R.S.C. 1985, c. I-2
2.
Immigration & Refugee Protection Act, S.C. 2001, c. 27
3.
Immigration & Refugee Protection Regulations, SOR/DORS/2002-227
4.
Canada's Immigration & Citizenship Bulletin, Canada's Fear of Lower Skilled Workers, Editor, James Egan, 19 Imm.& Cit.#1, February, 2008
5.
Citizenship & Immigration Canada, Foreign Worker Manual http://www.cic.gc.ca/english/resources/manuals/fw/index.asp
6.
Danson, Wendy:
Temporary Entry Under the Immigration and Refugee
Protection Act, S.C.2001, c.27, presentation to Legal Education Society of Alberta, Immigration Law Seminar, October, 2002 7.
Langford, Vance P. E.
Servicing Canada: Responding to the Skills and
Labour Shortage, presentation to CBA Immigration CLE, April, 2007 8.
Human Resources Skills Development Website: http://www.hrsdc.gc.ca/en/workplaceskills/foreign_workers/index.shtml
r
.01
Operational Instructions: 07-010 (RIM) Date: Revised 06-040 (RIM), February 28, 2007 Author: Ginette Lafleche Approval: Bruce Scoffield Category: Procedures Subject: Initiating Processing on Request for Temporary Worker Applicants, pending Labour Market Opinions (LMO). The purpose of this message is to provide visa offices guidance on initiating processing of applications for Work Permits received from temporary worker applicants awaiting Labour Market Opinions (LMO) from Service Canada (formerly Human Resources and Skills Development Canada). Given the role temporary workers play in meeting labour market needs, and given CIC's departmental objective of facilitating the entry to Canada of temporary workers to support the development of the Canadian economy, there is recognition that improvements can be made to the way work permit applications are processed. Accepting and initiating processing of the applications while awaiting LMO is one change that can be made with relative ease, and one which will have limited impact on visa office operations while being facilitative to the applicant. Globally, this program has an approval rate of over 90%. Initiating processing includes the issuance of medical instructions and forms to the applicant, and initiation of background checks and police clearances, if necessary. Please note that this guidance does not apply to applicants in the Live-in Caregiver Program, the Seasonal Agricultural Worker Program or the Pilot Project for Occupations Requiring Lower Levels of Formal Training (NOC C&D).
Under what conditions should processing be initiated for temporary worker applicant awaiting an LMO? In cases for which a visa officer does not have concerns regarding the credibility of either the employer or applicant, or the eligibility of the applicant for a work permit for the job offered, it is more efficient and more responsive to employer needs, to commence processing of the application as soon as possible after receipt. Situations which would be excluded from this facilitative approach to initiating processing of the work permit application include applications where the visa officer has prima facie concerns regarding the bona fides of the job offer or bona fides of the applicant. Prior to initiating processing of a temporary worker application awaiting LMO, certain conditions should be met. At the time of application, the applicant: •
has submitted an application for a Work Permit and has included with the application all required documents and fees, with the exception of the LMO;
•
has indicated awareness of the need for a positive LMO, and has provided a copy of the LMO application which the employer has submitted to Service Canada;
•
has provided a copy or original of the job offer in Canada , or contract, which outlines the duration and requirements of the job; appears credible and appears to meet the requirements and skills of the job being offered
•
.
2
When initiating processing of a Work Permit application pending receipt of an LMO, the visa office should: create a temporary worker file at the time a decision has been made to accept the application without an accompanying LMO; inform the applicant that processing will commence; that the issuance of medical instructions and forms does not imply the application will be approved; that medicals will be conducted "at their own risk''; and that issuance of the medical instructions and forms is a facilitative measure to speed up the total processing time; for consistency, visa offices should include the following paragraph, or facsimile thereof, in the letter which accompanies the medical instructions: ''Medical instructions are being issued at your own risk (i.e., expense) to expedite the processing of your application for a work permit; the early issuance of these instructions does not infer approval of your application. You are also reminded to submit the Labour Market Opinion (LMO) from Service Canada as soon after it has been obtained. You should submit the LMO within 90 days from date of this letter; failure to do so may result in refusal of your application. A fter 60 days, we would advise you to contact your employer to enquire about the status of the LMO application and advise the visa office if the processing of the LMO application will require more than 90 days'',enter into CAIPS notes that the early initiation of processing (which includes issuance of medical instructions) was at own risk, while awaiting receipt of the LMO from Service Canada;and upon receipt of the LMO, confirm applicant meets the requirements of the job in Canada as stated in the LMO. Section 7 of the Temporary Worker manual (Processing Temporary Foreign Workers-Documents required with application) outlines, in addition to other documents and cost recovery processing fee, an application for a Work Permit must include evidence that the eligibility criteria of R200(l)(c) are met. Examples given include job offers or contracts, HRSDC confirmation (now Service Canada confirmation), acceptance into a youth exchange program, etc. Immigration Branch (formerly Selection Branch) has confirmed that the listing of other documents such as LMO do not fall within the parameters of R10, and therefore there is no regulatory requirement for an LMO at the time of application; the application may be accepted and processing begun without a LMO. A positive LMO and related assessments must be completed prior to issuance of the work permit. If a positive LMO is not received within 90 days from the date of the medical instructions letter, and we have not received any information from the applicant, Visa Officers should proceed to assess the WP application based on available information. If you have any questions or concerns regarding this change in processing, please contact RIM/Daniel Vaughan.
