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HR IMMIGRATION HANDBOOK

PREPARED BY HOLTHE TILLEMAN LLP


We have prepared & revised the HR Immigration Handbook to assist in your efforts to maintain employer compliance while navigating the
complex world of temporary foreign workers. We have set out key tracking information and a list of commonly requested documents in the
event of a government investigation or Employer Compliance Review (ECR). Maintaining thorough records will make the entire
immigration investigation and review process go much more smoothly than if this documentation is not readily available.

TABLE OF CONTENTS
Contents
Introduction ______________________________________________________________________________________________ 1
The Immigration Landscape of 2014 & the Critical Role of HR Managers ___________________________ 2
Labour Market Impact Assessment (LMIA) Basics ____________________________________________________ 6
LMIA Advertisement Checklist ________________________________________________________________________ 16
Tips for Successful LMIAs ______________________________________________________________________________ 17
Work Permit Applications _____________________________________________________________________________ 18
Keeping Track of Your Foreign Workers & Remaining Compliant __________________________________ 27
Preparing for Government Investigations ____________________________________________________________ 29
Employer Compliance Reviews (ECR) ________________________________________________________________ 31
Site Visits ________________________________________________________________________________________________ 36
Online Resources _______________________________________________________________________________________ 37
Company Information Holthe Tilleman LLP ________________________________________________________ 38

Introduction
In a country so diverse, full of opportunity and economic strength, it will come as no surprise that
despite the recent chill on the Temporary Foreign Worker Program across Canada, the demand for
skilled foreign workers continues to be high as Alberta employers struggle to fill labour shortages
in our Province. However, the process involved in sourcing and retaining essential foreign labour
is becoming significantly more difficult. With an ever increasing emphasis on employer
compliance through the use of compliance reviews and unscheduled job site visits, employers are
frequently finding themselves offside immigration regulations, despite their good intentions. As a
result, employers rely heavily on their Human Resource Managers to maintain compliance by
keeping track of their foreign workers and preparing for government audits while ensuring all
necessary documentation is ready when the call comes from Employment and Social Development
Canada (ESDC).
This handbook was designed by the lawyers at Holthe Tilleman LLP as a guide for Human
Resource Managers to use when hiring, retaining, and most importantly, maintaining
compliance within the ever volatile Temporary Foreign Worker Program (TFWP).

HANDBOOK UPDATES
For handbook updates, please visit our website regularly at www.ht-llp.com or contact us directly.
Updated October 2014

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The Introduction of LMIAs & the Critical Role of HR


Managers
Over the last four years we have seen drastic changes to Canadian immigration law and the foreign
worker program. The new rules implemented on April 1, 2011 specifically placed the continued
responsibility of foreign workers on the shoulders of employers. With a greater emphasis on
employer compliance, the new rules instituted a substantially the same test, whereby
immigration officials were given power to assess whether an employer was compliant in providing
wages and working conditions that were substantially the same as the terms and conditions
agreed to in the original job offer.
Further, on Friday, June 20, 2014, the government announced significant changes describing the
announcement as an overhauling of the temporary foreign worker program1. Several changes
were implemented, many of which became effective immediately. In order to provide greater
clarity, the TFWP was divided into two distinct categories with the previous Labour Market
Opinion (LMIA) process being rebranded as the new Labour Market Impact Assessment (LMIA). In
addition, the International Mobility Program (IMP) was been created to better manage and track
work permits issued under the many work permit categories that are exempt from the need to
first obtain an LMIA. Both the LMIA and IMP programs continue to undergo significant revamping
by ESDC and Citizenship and Immigration Canada (CIC).
Today, employers seeking to hire foreign workers may now be required to demonstrate
compliance before they are even granted a positive LMIA. Compliance with the TFWP may also be
assessed during the work permit process and when the foreign worker applies for permanent
residency. Random government audits are also occurring more frequently with the possibility of
unscheduled site visits coming in the future. Employers should be prepared to provide sufficient
documentation to prove employer compliance at all stages of the foreign worker process.
What is most concerning is that employers often do not fully understand their obligations when
hiring foreign workers. Many employers assume the onus is on the foreign worker to remain
compliant with work permit conditions. However, changes to corporate structure, bonus
payments, wage raises/decreases, relocation or even promotions may suggest that an employer is
non-compliant if corresponding changes are not made to the underlying LMIA and work permit.
For example, foreign workers employed in one location cannot work in another work location
without the employer applying for and receiving a new confirmed LMIA and the worker receiving
1

See ESDC Website: http://www.esdc.gc.ca/eng/jobs/foreign_workers/reform/index.shtml

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a new work permit from Citizenship Immigration Canada (CIC). A wage increase of more than 2%
could also trigger a finding of non-compliance unless the raise was contemplated within the
original LMIA/LMIA. Further, companies with multiple subsidiaries need to exercise caution to
ensure that compensation is flowing from the employer of record stated on the LMIA confirmation
and not another entity.
On December 31st, 2013, new Ministerial Instructions set out additional employer obligations and
conditions and specifically mandated an in-depth and lengthy employer record tracking system as
a component within the employer compliance process. As required by law, employers must now
retain any document that relates to compliance, including but not limited to those conditions
confirmed within the LMIA letter and annexes. This information must be retained and producible
for a period of six years, beginning on the first day the foreign worker commences employment.
Further, during this period the employer must demonstrate that any information they provided in
the context of the LMIA was indeed accurate.
Another significant development is the fact that ESDC now has the authority to conduct on-site
inspections without a warrant to verify an employers compliance with LMIA conditions at any
time throughout the respective six year period. Further, much greater emphasis has also been
placed on the training of Canadian citizens and permanent residents to fill positions currently held
by foreign workers. We anticipate that the establishment and presentation of detailed training
plans may become much more important within the LMIA process.
If an employer is found to have failed to meet the conditions to which no justification and
corrective action can be made, access to the temporary foreign worker program may be denied for
two years, barring the employer from hiring or retaining any foreign workers. ESDC and CIC may
publish the employers name, address and period of ineligibility as part of their list of ineligible
employers on a public ban list and any pending LMIA applications and previously-issued
LMIA/LMIAs may be denied or revoked. Currently, there are only a small number of employers
listed on the ESDC blacklist. However, the government has recently proposed a serious of
significant changes to the penalty mechanism with the TFWP. Monetary and other penalties have
been proposed for even the most innocuous non-compliance. Currently, employers who have been
found non-compliant by virtue of a clerical error or unintended mistake are given the opportunity
to take corrective action. However, the new proposed changes suggest a monetary penalty may
still be imposed where no finding of guilt or wilful error has been committed by the employer.2
Further, it has been proposed that employers under investigation for non-compliance may also be
placed on the ESDC blacklist while the investigation is pending. In effect, the government is
See Government Discussion Paper on Proposed Regulatory Changes:
http://www.esdc.gc.ca/eng/jobs/foreign_workers/consultations/discussion_paper.shtml
2

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proposing a form of public shaming on companies who have committed no offence and are
ultimately found to be fully compliant.
These sanctions are new additions to the existing penalties under the Immigration and Refugee
Protection Act, SC 2001, c 27, that state Employers who employ a foreign national in a capacity in
which the foreign national is not authorized to be employed, may be fined up to $50,000 and
imprisoned for up to two years.
These consequences bring public shame and embarrassment to the penalized corporation and
may severely hinder their operations, existing contracts, and relationships. Further, without
access to the foreign worker program, employers may be severely restricted in their international
trade, recruitment and sourcing of skilled labour.
Employers must be aware that the conditions and actions under one work permit can in fact
threaten the employment of all of their foreign workers. The Ministerial Instructions issued on
December 31, 2013, set out specific public policy considerations that allow ESDC to suspend,
revoke or refuse an LMIA/LMIA application. Accordingly, if there are reasonable grounds to
suspect that the employer is not complying with the conditions in respect of a work permit or any
other work permit and the failure to do so cannot be justified, then any subsequent and pending
LMIA applications for any of the employers foreign workers may be in jeopardy.
Following a determination of non-compliance, employers may be issued negative LMIAs on any
pending LMIA applications and may have previously-issued LMIAs revoked. Further, any work
permits associated with revoked LMIAs could also be cancelled. Therefore, the impact of noncompliance in one application can severely impact all foreign workers under that employer. As a
result, employers need to be aware of the specific restrictions placed on them when hiring a
foreign worker and take steps to properly document their obligations and prove compliance.

BEST PRACTICES
Best practices for employers to ensure they remain compliant include:

retaining all documents for a period of 6 years to demonstrate full compliance with the
information on the LMIA application and the terms and conditions set out in the LMIA
letter and annexes;
contacting ESDC before making any changes to conditions set out in the LMIA letter and
annexes;
cooperating fully with ESDC during compliance reviews;
working with authorized representatives. Bill C-35 restricts those eligible to provide
immigration advice and assistance. Be careful when turning LMIA and work permit

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applications over to recruiters unless you know they are authorized to do so. CIC has a list
of authorized representatives; and
regularly checking ESDC and CIC websites for updates and changes to employer
obligations.

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Labour Market Impact Assessment (LMIA) Basics


In most cases, employers who wish to hire a temporary foreign worker (TFW) must first apply to
ESDC for a LMIA. This opinion assesses the impact the offer of employment to a foreign worker
will have on Canadian jobs.
You can apply for a pre-approval (unnamed LMIA) which is approved in principle for a position or
several positions, or you can apply for an LMIA for a specific worker or workers (named LMIA) at
the onset.

STEP ONE: DETERMINING THE NOC CODE


When starting the process, the first step is to determine the National Occupation Classification
Code (NOC Code) for the position in which an LMIA is sought. The NOC Code can be determined
by searching for the position you seek to fill on the NOC website located at
http://www30.hrsdc.gc.ca/NOC/English/NOC/2006/Welcome.aspx.
Please note that there are two versions: NOC 2006 and NOC 2011. For the purposes of the LMIA
process and the TFWP, ESDC relies strictly on NOC 2006. You will then need to determine the
prevailing wage for the position which will in turn assist you in classifying your LMIA application
as either High Wage or Low Wage for the purposes of the new LMIA regime. In the previous LMIA
regime the Skill Level of the position was the determining factor in the LMIA process. As a result of
the recent changes, High Wage occupations will follow the traditional High Skilled requirements
(including newly announced additional requirements) and Low Wage will follow the process for
filing a Low Skill LMIA application. Each category sets out specific conditions, wages,
advertisement requirements and application procedures.
Tip: Always insert your own NOC Code and do not leave it up to ESDC. By selecting the NOC
Code, you can ensure that ESDC does not select a position that does not fit for the foreign
worker you have selected. At times, ESDC can select a position that is more senior than the
one you have selected which could result in a higher prevailing wage, and your selected
worker not meeting the minimum education requirements.

Tip: Pay close attention to the specific requirements under each NOC. If a minimum
education level or experience is set out in the NOC, you will not be able to accept candidates
with lower credentials. ESDC may approve the LMIA, but CIC will refuse to grant the WP.

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STEP TWO: DETERMINE THE PREVAILING WAGE


Once you determine the most appropriate NOC Code, you can then search for the prevailing wage
for that position by entering the NOC Code into the search field using the www.jobbank.gc.ca
government website. Employers hiring TFWs must meet or exceed the prevailing wage rate for
the position as determined by the NOC Code.
Tip: Review the prevailing wage for ALL LOCATIONS that the foreign worker will be
required to work in. For example: even if the foreign worker is based in Calgary, but will be
required to travel and work in Fort McMurray from time to time, you must meet the
prevailing wage rate in both regions, whichever is higher.

STEP THREE: DETERMINE WHETHER THE POSITION IS CLASSIFIED AS A HIGH OR LOW WAGE
As per the June 20, 2014 changes, the streams for LMIA will now be assessed as either High Wage
or Low Wage, instead of being classified as High-Skilled or Low-Skilled. (Please note that
currently all permanent resident qualification requirements will continue to follow the previous
high/low skill distinction.) The government claims that wage is a more objective and accurate
reflection of skill level and labour need in a given area. Positions where the prevailing wage is
below the provincial/territorial median wage will be considered low-wage, while those positions
where the prevailing wage is at or above the provincial/territorial median wage will be considered
high-wage.
The starting point for any Alberta Employer hiring a foreign worker will now be: Are you offering
an hourly wage that is higher or lower than $24.23/hour, our provinces median hourly wage? If
you are offering a wage that exceeds this, your application will be considered under the highwage stream, and subsequently, should you offer a wage that is lower than this, you will be placed
in the low-wage stream, keeping in mind, the prevailing wage rate is still applicable to any and
all applications under the LMIA, which means that you must be offering a wage that meets or
exceeds the prevailing wage rate for the specific region where you intend to employ the foreign
worker.
The wage distinction is crucial not only in the assessment process, but will also dictate the
limitations and restrictions imposed on you and the foreign worker. For example, LMIAs will only
be granted for a maximum period of one year for low-wage applications, rather than the previous
two year duration granted to low-skilled occupations. Below is a detailed chart we prepared that
explains the new restrictions imposed based on the wage class of your LMIA application:

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New Restrictions Imposed depending on Wage Class


High Wage
Low - Wage
Employers are now required to submit Employers with 10 or more employees
transition plans with their LMIA application to applying for a new LMIA are subject to a cap of
prove they will continue to take steps to 10% on the proportion of their workforce that
transition away from TFWs to a Canadian work can consist of low-wage temporary foreign
force. Employers will be expected to help workers. This cap will be applied per worksite
Canadians obtain in-demand skills through of an employer and is based on total hours
investing in skills training, taking on more worked at that worksite.
apprentices, on the job training, or helping high
skilled temporary foreign workers obtain their
permanent residency.
Employers required to undertake additional Employer applications will not be processed if
recruitment activities, including reaching out each of the following factors are present:
to organizations serving groups traditionally
1. Applying for an LMIA where the
underrepresented in the workforce, ie.
regional unemployment rate is over 6%
Aboriginal, youth, Canadians with disabilities,
2. Seeking LMIA in one of the occupations;
etc.
identified under the North American
Industry Classification System as
Accommodations & Food Service or
Retail Sales; AND
3. Seeking LMIA under a NOC Skill Level D
occupation
Advertise position in Canada for a minimum of Duration of Work Permit set out in LMIA is
four weeks applicable to all advertising reduced from 2 years to 1 year, which means
methods, including the National Job Bank and Employers need to apply every year for lowat least two additional methods of recruitment, wage positions
one of which must be national in scope.
The Government will reduce how long a TFW
in the low-wage stream can work in Canada.
Note, this limitation has not yet been defined
or implemented by the government, but is
expected to be released soon. Currently low
skilled workers are capped at 4 years.
Advertise position in Canada for a minimum of
four weeks applicable to all advertising
methods, including the National Job Bank and
at least two additional methods of recruitment,
demonstrating that you have made efforts to
hire Canadians from under-represented groups
in the work force, such as Aboriginal, youth or
Canadians with disabilities.

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STEP FOUR: THE ADVERTISEMENTS


To meet the minimum advertising requirements set by ESDC, you must advertise:
1. 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 LMIA is issued.
2. Using 2 or more additional methods of recruitment consistent with the normal practice for
the occupation (ie. Local newspapers, job boards, print media, and general employment
sites, including jobboom.com, workopolis.com, monster.ca, kijiji, jobshop, and indeed.ca
etc.). The advertisements must be posted for a minimum of 4 weeks starting from the first
day the ad appears and is accessible to the general public.
3. Targeting underrepresented groups (for lower-skilled positions). 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 prescreened applicant pool.
All of the advertisements must include the following:

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:
i. Education
ii. Work experience

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Tip: Ensure that each of the specific content requirements are included within all ads. ESDC
will not hesitate to refuse an LMIA if any of these requirements are missing regardless of
how insignificant they may seem.

Tip: Always maintain internal consistency within all ads, employment agreements,
application forms, etc. Internal inconsistencies can also cause an LMO application to be
refused.
Tip: If possible, go above and beyond these recruitment guidelines by posting more than
three advertisements, and using at least one of the paid online job websites. The more you
can show that you have reached out to Canadians/Permanent Residents, the more likely
your LMIA application will be approved.

***Please refer to the LMIA Advertising Checklist in this handbook which can be used as a
quick reference guide when creating advertisements.

STEP 4: GATHER RESPONSES


Using a detailed spreadsheet, prepare the information and reasons why each candidate qualified
or did not qualify for the position. The spreadsheet should include the date the application was
received, the specific requirements for the position, an assessment of each candidates
qualifications, place of residence of candidate (if known), notes from the interviews conducted
and references checked. It is important to note that the most important part of this spreadsheet
will be the specific educational and experience requirements for the position. Employers must
give Canadian citizens and permanent residents a realistic shot at qualifying for the position. ESDC
will rely heavily on the job requirements set out in the NOC profile description. If an employer
wishes to impost more stringent experience or educational requirements than that set out in the
NOC profile, it will be essential that a solid business case can be made to justify these added
requirements. Remember that ESDC will expect that any Canadian or PR will be given a fair shot at
the position if they meet the minimum requirements to fill the position.
A properly completed spreadsheet can help significantly when preparing for the inevitable call
from ESDC. We encourage you to include the spreadsheet within the application materials
submitted in support of your LMIA application. In this fashion, you have created an easy reference
guide which sets out clearly why no candidates met the minimum requirements for the position
and result in a significantly less stressful experience when justifying your recruitment efforts to an
Officer.

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For your reference we have provided a sample spreadsheet that can be used as a guide in creating
one suited to the specific circumstances of your application.
Date

Applicant
Name

Place of
Residence

Education

# Years of
Experience

[REQUIRED
SKILL(S)]

Interview
(Y/N)

Reasons

STEP 5: PAY THE FEES AND SUBMIT THE APPLICATION


Once it is clear from your recruitment efforts that no qualified Canadians or permanent residents
are available to fill your position you can then finalize your LMIA application materials and
prepare for submission to ESDC. However, the application cannot be submitted until the four
week recruitment period has been satisfied.
You must first complete all of the required forms (which vary depending on category). As a result
of the more recent changes to the program, Employers must now pay $1,000 for each position
requested under the LMIA in order to cover the cost of processing the 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

Tip: As part of the application process, we always submit a detailed letter of support setting
out specific information about the employer, position, NOC Code analysis, prevailing wage
rate, all recruitment efforts as well as benefits flowing to the Canadian labour market when
hiring the foreign worker. Further, this letter provides you with an opportunity to explain
in detail why there are no qualified domestic candidates available and why you needed to
search for candidates abroad.

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STEP SIX: ASSESSMENT OF THE LMIA BY ESDC


All LMIA applications go through a rigorous assessment process which includes a telephone call
from an Officer with the main contact person listed on the LMIA application form. The assessment
process follows a systematic pattern designed to confirm the following information.
1. Verify if the employer is eligible to participate in the Temporary Foreign Worker
Program. The list of ineligible employers appears on ESDC Web site and can be found at:
http://www.esdc.gc.ca/eng/jobs/foreign_workers/employers_revoked.shtml
2. Verify if the employer is using an authorized third-party representative, if
applicable. Please note that some recruiters offer to assist employers with placing ads
and preparing the LMIA application materials as part of their quoted recruitment fee;
however, employers need to be careful to ensure they are fully certified to do so, otherwise,
an LMIA application could be refused if the employer is using an unlicensed
representative.
3. Verify that the job offer is consistent with federal-provincial-territorial agreements,
such as employment standards legislation, labour code, etc.
4. Assess the genuineness of the job offer. The assessment is based on whether the:
a. employer is actively engaged in the business related to the job offer;
b. the job offered to the TFW is consistent with genuine employment needs;
c. the employer can fulfil the terms and conditions of the job offer; and
d. the employer and, if applicable, third-party representative is compliant with the
relevant federal-provincial-territorial employment and recruitment legislation.
5. Assess the impact of hiring a TFW on the labour market including:
a. wages and working conditions offered;
b. occupation in which the TFW will be employed;
c. employer's recruitment and advertisement efforts;
d. benefits to the labour market;
e. consultations, if any, with the appropriate union; and
f. effect on the settlement of a labour dispute.

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6. Assess previous job offers that the employer has made to a TFW within the 2 years
preceding the date of the new LMIA application. This is to determine whether the
employer has provided substantially the same (STS) wages, working conditions and
occupations as outlined on the previous positive LMIA letter and annex.
7. Ensure that the employer has met all the Program Requirements (i.e. Paid applicable
processing fees, review of Business Licence and other documentation.)
One of the most important aspects of the assessment process is the call you will receive from an
Officer related to your LMIA application. The call was first instituted for program integrity
purposes to combat fraud within the LMIA application process. At times, unscrupulous third
parties would submit fraudulent LMIA applications on behalf of unsuspecting employers in order
to secure illegal work permits for foreign nationals seeking to enter Canada. In order to combat
this, ESDC reserved the right to contact the employer directly to confirm information contained
within the LMIA application.
Unfortunately, this call has evolved to much more than a simple confirmation of the employers
desire to actually participate in the program. Employers can now expect something akin to an
interrogation in many instances. Information contained within the LMIA application is often
questioned or even outright challenged as to its accuracy. Often Officers will focus on the
recruitment efforts and why Canadians were disqualified from consideration. As such, it is critical
that you are prepared and ready to defend your need for an LMIA. A properly completed
recruitment tracking chart will help with your defence.
Many LMIA applications succeed or fail based upon the effectiveness of the contact person on the
call. Dont fall into the trap of placing upper level managers as the contact person unless they have
been actively involved in the recruitment process, preparation of the application materials and are
fully up to speed with the entire LMIA process. We often suggest that the contact person be the HR
Manager or other person directly involved with the application process. Senior management may
continue to remain the signing authority on the application; however, do not assume they also
need to be the main contact person.
Finally, if the contact person is going away on holidays, it is also recommended to include two
people as main contacts for the company so as to ensure a timely reply when the call comes from
ESDC. Applications may be refused if a voice message is not responded to within 48 hours.

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STEP SEVEN: DECISION


Following the program integrity call, a final decision will be made on the LMIA application. You
will be notified via facsimile (Western Territories Region) as to the success of your application.
An Officer will rarely confirm a Positive LMIA over the phone.
Positive LMIA: The employer will receive a letter confirming the approval of the LMIA
application. This positive LMIA is valid for 6 months from the date of issue. For privacy reasons,
the letter will not include the names of the TFWs. However, it provides specific details about the
job offer, such as the wages, working conditions and occupations as well as a system file number.
The names of the workers will appear in a separate, but enclosed pages entitled, Annex B which is
intended for the employer's records only, and is NOT to be shared with the TFW as it is not
required for the purposes of applying for a work permit.
Tip: Review closely and ensure the LMIA Approval and Annex accurately sets out the wages,
working conditions, position requirements and position title. It is also recommended to
check the spelling of the TFWs names on Annex B to ensure they have been keyed in
properly. Improperly spelled names can also cause problems when the TFW is applying for
their work permit.

Negative LMIA: If a negative opinion is issued, this means that you have not met all of the
program requirements. Often the main reasons for refusal include the following:
1. deficiencies within the content criteria of advertisements such as a missing business
address or a failure to indicate whether the job was permanent or project based;
2. failing to offer the prevailing wage rate for the position; or
3. no labour shortage is found to exist within the occupation requested. This is the most
frustrating refusal because the Officer is stating, in effect, that they do not believe your
assertions that there are no Canadians or permanent residents available to fill the position.

STEP EIGHT: CONTACT THE FOREIGN WORKER


Once the positive LMIA letter is received, you should then send a copy of the letter to the foreign
worker so that they can apply for a work permit to CIC. The foreign worker must include with the
work permit application a copy of the LMIA Confirmation as well as a copy of the employment
contract signed by both the employer and the worker, and proof that the foreign worker meets the
minimum education and experience qualifications for the position.

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Note there will be additional steps for lower-skilled workers, such as arranging and paying for
transportation costs and arranging for accommodation.

STEP NINE: DOCUMENT EMPLOYER COMPLIANCE


The LMIA process does not end once a positive LMIA is received. The initial assessment process
may be over, but your responsibilities as the employer, extends far beyond the initial first eight
steps above. Once you have secured a positive LMIA and the foreign worker has successfully
obtained their work permit, it is extremely important that you remain compliant with the program
by upholding the terms and conditions of employment as stated in the original job offer and set
out in the positive LMIA confirmation and annexes.
Employers must also follow all federal/provincial/territorial employment regulations and laws, as
well as other labour and human rights legislation. Each of these apply to all employees whether
Canadian, permanent resident or TFW.
Finally, the employer must take immediate steps to follow through on the various activities set out
in the High Wage LMIA Transition Plan. At times an employer will feel that all necessary work has
been accomplished once the LMIA has been approved. However, this could be a fatal error at the
time in which a new LMIA is sought to extend the work permit of the newly hired foreign worker.
Pay close attention to what was proposed within the transition plan and take steps immediately to
put in place a plan to complete these activities over the coming year. If not action has been taken
when the new LMIA is sought, the application would likely be refused.

Tip: Conduct regular internal audits to ensure compliance with all conditions of the LMIA
confirmation by monitoring the expiry dates of work permits, keeping up to date copies of
contracts, work logs, payroll, job duties and location of work readily available. Keep records
when fulfilling the various activities within the Transition Plan. In this manner, you will
always be prepared for employer compliance reviews and other investigations.

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LMIA Advertisement Checklist


To ensure your company advertisement meets the specific requirements set out by ESDC under
the LMIA process, you should ensure that each advertisement posting includes all of the following:

Company operating name


Business Address
Title of Position (note: this should be consistent throughout all of your advertisements)
Job Duties
# Vacancies
Terms of employment (permanent, full time, project based)
Wage (preferably per hour breakdown not yearly)
Benefits package being offered (if applicable)
Location of work local area, city or town (note: indicate all locations that the foreign
worker may be required to work under the work permit, for example:, Calgary, Cochrane
and Airdrie.)
Skill requirements
Education
Work Experience
Contact information
Telephone number;
Cell phone number;
Email address;
Fax number; or
Mailing address

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Tips for Successful LMIAs

Dont define your position too narrowly


Make sure the foreign national meets all of the requirements for the position
Follow the minimum advertising guidelines explicitly (use the checklist enclosed on the
previous page)
Maintain internal consistency within the application
Use a spreadsheet to compile detailed results of recruitment
Clearly document reasons why applicants did not qualify for the position
Do not use language (other than English/French) as requirements on an advertisement
(unless there is a true bona fide reason, which will only be found in the most extreme
cases i.e. translator).
Ensure main contact is reachable via listed number, and if possible provide a second
contact person.
Be prepared to defend the need for the foreign worker during the program integrity call.
Include all of the benefits to the Canadian labour market by hiring this foreign worker.
Make your case as clear and compelling as possible.
Ensure all activities within the Transition Plans are completed after LMIA is approved.

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Work Permit Applications


A NOTE OF CAUTION TO HR MANAGERS
If you are currently assisting foreign workers in securing work permits following the successful
issuance of an LMIA, you must proceed with caution.
Pursuant to Bill C-35, only certain people can act as authorized representatives for TFWs before
CIC and the Canada Border Services Agency (CBSA).
Authorized representatives who receive a fee for providing assistance to TFWs applying for visas
to come to Canada must be lawyers in good standing with a Provincial or Territorial law society or
certified immigration consultants registered with the ICCRC. Assistance can include any of the
following things:
1. acting on behalf of a foreign national during an immigration proceeding;
2. helping a foreign national choose the best immigration stream; or
3. filling out any work permit or other immigration forms.
Some discussion has occurred in the past few years as to the applicability of Bill C-35 to HR
Managers who are paid by the company in the course of their job duties to assist foreign workers
in making applications to CIC, Provincial PNP Programs or the CBSA. Although our office does not
feel that the legislation should apply to HR Managers simply doing their job, there has been some
feedback from CIC indicating that HR Managers and International Student advisors within
Educational Institutions could be caught by these provisions.
Although there is no clear directive or case cited where an HR Manager was found liable for
assisting TFWs with immigration applications, during the regular course of their HR duties, we are
aware of some companies who have taken the risk conscious approach of not including these
services within the job description of their HR Managers. Ultimately, it is a choice that must be
made by each company in determining their own level of risk tolerance.
With the many hats an HR Manager wears these days, it is not always easy to stay on top of all of
the many changes that are occurring within CIC and ESDC. It is always prudent to have trusted
legal counsel available should you have a quick question or need more substantive assistance in
ensuring the foreign workers you have recruited are able to successfully obtain their work permit.
There is nothing worse than spending months to obtain the LMIA only to have the foreign worker
apply for their work permit on their own and get it rejected.

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In an effort to better prepare HR Managers for navigating the complexities of work permit
applications, we have set out below information designed to help you avoid some of the common
pit falls associated with this process. It is also important to note that we have focused our
discussion on LMIA based work permits and have not provided specific guidance on the many
LMIA exempt work options that exist (i.e. Intra-company transfer, NAFTA Professional, Working
Holiday, Reciprocal Employment, Significant Benefit, etc.)

A special section will soon be added to our new website which will set forth specific
guidance regarding the various LMIA exempt work permit options available as well as tips
and strategies designed to increase your odds of success.
Visit our website at: www.ht-llp.com

HOW TO GET THE WORK PERMIT APPROVED


It goes without saying that careful attention must be paid to the details within any work permit
application. Never file a work permit application without carefully reviewing not only the generic
CIC work permit instruction guide and document checklist, but also carefully reviewing the visa
office specific instructions at the consulate or high commission in which the application will be
filed.
Failing to include even the most innocuous item listed on the checklist could result in a refusal. It
would not be helpful to include within this handbook every possible omission that could result in
a refusal. However, a general rule of thumb states that if the guide or checklist asks for something,
or for that thing to be presented in a certain way, follow the instructions explicitly. The
consequences of not following the instructions could be devastating for not only the foreign
national you are recruiting, but for your company as well. It is important to remember that LMIAs
are only valid for 6 months. With current processing times at some visa offices reaching up to 7
months or more, the refused work permit could come back after the LMIA has expired. In these
circumstances, employers would need to start the arduous LMIA application process from the very
beginning including reposting advertisements all over again.
It is tremendously frustrating to see employers waste months of time to secure an LMIA only to
see the foreign workers work permit application get refused because of a processing deficiency,
such as the fee payment was not paid in the proper fashion. Few employers have the luxury of
waiting up to a year to secure work authorization for a much needed employee.

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KNOWING WHERE TO APPLY FOR THE WORK PERMIT


There have never been more options for filing a work permit application than there are today.
Applications can be submitted through any one of the following methods depending upon the
circumstances of each foreign national.
1. Paper application directly through a foreign visa office used for visa required
nationals or those requiring immigration medicals which in most cases will necessitate
that the work permit application be made through a visa office abroad prior to travelling
to Canada. This method can also be used for any foreign national who desires greater
certainty and is not in a terrible hurry to travel to Canada. Others may be nervous
advocating on their behalf before a CBSA Officer and as such wish to have the adjudication
of the work permit completed prior to arriving in Canada so that the adjudication process
at the border will be minimal.
2. Paper or in person application through a visa application centre (VAC) servicing the
visa office where the foreign national intends to apply VACs are a third-party entity
contracted by CIC to assist foreign nationals in ensuring their application materials are
complete prior to forwarding them on to the visa office. The employees of the VACs are
not immigration Officers and have no decision making power on applications. Their sole
purpose is to ensure all necessary documentation is included and not to give advice on
how to complete application forms nor which immigration streams are appropriate.
Notwithstanding this fact, we have seen VAC employees remove additional documentation
provided by employers in support of complex work permit applications. Use this venue if
processing times are listed as being faster or if the foreign national is less sophisticated
and needs the reassurance that the basic application materials are correct. However, if
biometrics are required, the VAC typically handles this process on behalf of CIC. Not all
VACs are created equal, so it is important to know when to use the VAC and when to file
directly through the visa office. Only experience will be able to tell you which is better.
3. Applying online through the CIC portal there has been a strong push recently to have
applicants file electronically. There are a number of reasons for CIC doing this, including
operational efficiency. It is entirely possible that paper applications will be gradually
phased out in favour of the online process. In an effort to encourage foreign nationals to
use this service, processing times are often touted as being faster than when filing via
paper. Using the online process can be an attractive option for foreign nationals with
straightforward work permit applications. Instructions are fairly straightforward.
However, the preparation of the application package can be more time consuming given

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the challenges working within a virtual environment. The portal itself can often be down
leaving applicants with the frustration of wasting much time continually returning to the
site to see if it is back up. However, we have found that for the most part the online portal
is worth pursuing as filing is instantaneous when you are in a real time crunch (ie. LMIA is
expiring). Foreign Nationals will obviously need access to a computer and be able to
upload scanned copies of their supporting documentation in order to use this process. Our
office really likes this option because of the representative portal created by CIC. The
portal allows us to easily prepare application materials on behalf of clients all over the
world without the added headache of couriering original documents back and forth with
the client. As such, it does not matter where the foreign worker lives in the world, as long
as they are able to scan and e-mail their supporting documents to our office, we can
handle the whole process on their behalf giving them complete peace of mind.
4. Applying in person at a Canadian port of entry (POE) - If a TFW comes from a country
whose citizens require an entry visa to travel to Canada, this option is not available. If time
is an issue, which it often is, filing through the POE is likely your best option for visa
exempt foreign nationals. There are no specific application forms. However, the TFW must
bring with them all necessary supporting documentation to prove their eligibility for the
work permit including qualifications to work within the requested occupation. The POEs
are managed by the CBSA. The CBSAs primary mandate is border security. As such, TFWs
need to be prepared for a less than inviting experience depending upon the Officer they
appear before. In addition to the individual personalities of the Border Service Officers
(BSOs), each POE tends to have a culture of its own. As such, it is advisable to get to know
the tendencies of certain POEs and avoid those that have a reputation for being less
facilitative. Generally speaking, airports tend to be a little better than land crossings.
However, the Calgary and Edmonton airports do have a reputation for being less
facilitative than Vancouver, Toronto, and Montreal depending upon the type of work
permit you are requesting. LMIA based work permits tend to be fine at most POEs in
Canada. However, we would be remiss if we did not counsel everyone to avoid the Alberta
and Sarnia, Ontario land crossings. The strong enforcement culture that exists at these
ports of entry can make even the most straightforward applications a difficult and
stressful process for the TFW. If travelling by land to an Alberta destination, it is best to
route further east through Saskatchewan or west through BC prior to driving up. If
travelling into Ontario destinations, you have many choices available to you just avoid
Sarnia if you can.

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5. Paper application filed through the Temporary Foreign Worker Unit (TFWU)
seeking pre-approval of an LMIA exempt work permit - although this option is
exclusively for the expedited pre-approval of LMIA exempt work permits for visa exempt
nationals, we thought it would be important to include this. The processing units are
located in Toronto and Montreal. If you are uncertain as to whether or not a foreign
worker may qualify for an LMIA exempt work permit, and do not want to take the chance
at the POE, you may wish to consider this option. However, please note that the TFWUs
tend to be more strict than the POEs and processing times can be as much as 2 to 3 weeks.
As such, we generally recommend that if an application can be made at a POE, it is
typically best to do so versus the TFWU.

TIPS FOR STRENGTHENING THE APPLICATION


Because each situation is different, it is difficult to set out a long list of specific recommendations
that would be applicable to every work permit application. However, after careful consideration,
we have included below some great tips to watch for when filing work permit applications.
1. Ensure that the TFW you have selected actually holds the minimum experience and
education requirements set out in the NOC Position Profile. If the NOC Code position
profile states that several years of experience are required or that a specific educational
credential or license is required, then the TFW must be able to prove they possess this. We
have heard of LMIAs being issued to companies in which the minimum NOC requirements
were not required to obtain the LMIA. This is definitely atypical. However, when the
application was filed to CIC, the visa office refused the work permit application because
the TFW did not meet the minimum employment requirements for the position based
upon the NOC. Always remember that the NOC is the defining document when determining
the minimum requirements to fill a position in Canada.
2. Ensure you are applying through the proper location. Generally speaking, all LMIA
based work permit applications being submitted for the first time must be applied for
from outside of Canada. At times employers will source a TFW who is already in Canada
on a visitor visa. In these circumstances, the work permit application must be submitted
from outside of Canada, which could include a POE. However, exercise extreme caution in
filing this type of land border application for TFWs holding visitor status. It is advisable to
check with legal counsel in advance to determine the best POE to facilitate the work permit
application. Ultimately, only those holding a current work permit or study permit are
eligible to apply to extend or change the conditions on their work permit through the
inland processing centre.

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3. If the checklist asks for it, include it. never fall into the trap of assuming something
doesnt apply to your situation. We have found that when in doubt, include it. Further, dont
just rely on the generic CIC work permit checklist to know what must be filed at a visa
office. Always go directly to the visa office website to ensure there are no additional
country specific requirements. At times you will see that the visa office or VAC checklist
requests more documents than the online checklist. We tend to err on the side of caution
and include the extra visa office specific documents regardless of whether they are listed
through the online portal. In order to do so, just bundle them with another document
when they are uploaded. See tip #7 below for further information regarding bundling
documents.
4. Pay the processing fee exactly as requested if payment is made incorrectly, the work
permit application will be returned. Please note that CIC recently increased the work
permit processing free from $150 CDN to $155 CDN. Further, many visa offices have very
explicit instructions on how the payment is to be made including to whom the money
order should be made out to.
5. Do not misrepresent or counsel misrepresentation. We know this one goes without
saying; however, we would be remiss if we didnt discuss it. Misrepresentations can cause
huge problems for not only the TFW, but the company representative that advised the
misrepresentation. This can occur by deliberately stating something within the application
materials that is not true (misrep by commission), as well as by failing to disclose
something that if disclosed could impact on the adjudication of the application (misrep by
omission). At times, your job as an HR Manager will require you to carefully scrutinize the
qualifications of some foreign workers when something just doesnt seem right.
Fraudulent documents are a reality. At times lower skilled and some higher skilled TFWs
have nothing to lose by providing fraudulent documents to secure a work permit. The
consequence of the misrep places them in no worse position than if they had not provided
the fraudulent document they are still unable to come to Canada. As such, if something
smells fishy, do your due diligence. Also, one of the more common areas of innocent
misrepresentation occurs when dealing with family members. At times a TFW will fail to
include their accompanying dependent family members because he or she alone is
travelling to Canada and they are remaining at home. This could be considered a misrep
that is frequently caught when a person is applying for PR status in Canada and now wants
to include his spouse and dependent children.

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6. File online work permit applications early in the morning the best time to access the
online portal is in the morning. Rather than trying to get an application filed before you
leave at the end of the day, consider doing it first thing in the morning on the next day
when user volumes are much lower.
7. Be creative when trying to upload documents to the online portal at times we will
want to include documents that are not specifically listed in the online checklist. It can be
frustrating to know how to get them in and the consequences of uploading something to
the wrong spot. It has been our experience that no matter which section you upload
documents to, they all end up in the same place at the end. As such, be creative in how you
deal with the size quotas (4MBs) and other limited headings. We find that many
miscellaneous documents can be included within the counsel submission letter section.
However, if you are running out of room, dont hesitate to bundle documents together if
necessary. After all, it is not our fault the system has limitations. If you are really
concerned uploading a document to the wrong section will have negative consequences,
include a cover letter that explains why you did what you did and the problem the online
portal created. It would be very difficult for a visa Officer to justify a refusal when the
portal was the source of the problem and you were doing the best that you could.
8. Include additional information on a separate sheet if necessary whether accessing
the online portal or applying through the traditional paper process, you will at times face a
question on the forms that does not allow sufficient space to properly respond to it. If this
happens, simply include a duplicate page to accommodate for the extra space needed. This
commonly occurs when documenting employment history and address history. When
uploading this to the portal, do not hesitate to include a separate sheet of paper that lists
the specific form number and name in the heading as well as restating the specific
question and number together with the comprehensive response you were unable to fit
within the CIC form. This additional sheet of paper can be uploaded within the counsel
submission section.
9. Ensure photos match the Photo Specification guidelines although we have never
seen a work permit application rejected because of improper photos, we strongly counsel
our clients to follow the photo specification instructions when uploading photos to the
online portal. Just because it has not happened yet, does not mean your TFW will not be
the first to get their work permit application refused.
10. Consider filing upfront medicals, if required some TFWs will come from countries
where an immigration medical must be obtained. CIC has now created the option of

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allowing TFWs to complete upfront medicals before the work permit application is filed.
This option has the potential of reducing processing times; however, be very wary of doing
this if you intend to file the work permit directly at the POE. BSOs on the border often have
a difficult time navigating CICs new Global Case Management System (GCMS) where the
medical results are posted. POEs continue to use the old FOSS system and rarely access the
GCMS unless there is a specific reason to do so. Although the transition to GCMS appears to
be on the horizon for the POE. As such, you could have the TFW complete upfront
medicals, confirm with CIC that they are approved within the GCMS, only to have the TFW
arrive at the POE and realize the BSO is unwilling to search or unable to find the medical
results. Ultimately, if the application is being filed at a visa office, this option is something
worth considering.
11. Make sure the passport is valid for the entire duration of the LMIA if the passport
expires before the duration granted on the LMIA, the work permit will only be issued to
the expiry date on the passport. If this happens, it is possible to request an extension to the
work permit within Canada once the individual obtains the passport extension, using the
original LMIA confirmation regardless of whether or not it has already expired.
12. Consider filing an extension at a POE if a visa exempt TFW needs to travel and CPCVegreville is taking too long to process the work permit extension at times an
application will have been made to extend a work permit through the inland processing
centre and a TFW is currently in implied status with a need to travel abroad. If this is the
case, consider providing the TFW with a copy of the submitted application to present at
the POE when returning to Canada so that a request can be made to have the work permit
adjudicated directly at the POE. However, always ensure that the LMIA confirmation is
approved and in the system. We also recommend that you do not apply for a work permit
at the port of entry when the existing work permit has already expired and the TFW is
within the restoration period. If applying through the POE is absolutely necessary, we
recommend that efforts be made to file the restoration application before going to the POE
and consider flying the TFW back into Canada through one of the airports versus flag
poling at a land crossing if the TFW is visa exempt.

DEALING WITH ACCOMPANYING FAMILY MEMBERS


TFWs often wish to bring their dependent family members with them when travelling to Canada
for longer term work assignments or opportunities. It is important to recognize the distinction
between low wage and high wage TFWs (low skilled and skilled workers) and the varied

Page 25

treatment they receive by CIC during the work permit assessment process at visa offices abroad.
Generally speaking, it is not a major issue for skilled workers to bring their family members with
them when they travel to Canada. However, this is not necessarily the case for all low skilled/wage
workers.
The reason for the differential treatment towards dependents of low skilled and skilled workers
rests in the underlying assessment as to the whether or not the visa Officers believes the TFW and
his/her family will return to their home country following the expiry of their work permits. This
burden is higher for a low skill worker for a number of reasons including: insufficient wage to
support a family in Canada on a single income, limited opportunities for PR status, and fewer ties
to their home country. Contrast this with skilled workers who tend to earn more money, have
options for their spouses to secure open work permits and a number of PR options should the
family decide to remain in Canada permanently.
As a result of the above assessment, some work permit applications for low skilled TFWs have
been refused when they attempt to include their family members within their application. These
refusals typically occur to visa required TFWs living in underdeveloped countries where there is
high unemployment, and few opportunities for the TFW to make an adequate living at home. In
these circumstances, the desire to remain in Canada illegally will be greater if the entire family
accompanies the low skill TFW. Therefore, we generally counsel low skilled workers to not
attempt to bring their family with them unless they have strong ties to their home country,
sizeable savings, significant travel history to other countries, and a wage level in Canada that
would allow for the support of an entire family.
As stated previously, regardless of whether or not the dependent family members accompany the
TFW to Canada, they must be fully disclosed and identified to CIC within the work permit
application materials. However, many of these concerns lessen for citizens of visa exempt
countries as there is a general sentiment that they are not forced to seek employment in Canada
for a better life and as such are less likely to remain in Canada illegally when their temporary
status documents expire.

TIPS FOR DEALING WITH NON-IMMIGRATION ONBOARDING ISSUES


Stay tuned for a special section which will be added to our new website which will set forth
specific guidance regarding a number of the more typical onboarding issues faced by TFWs
seeking entry to Canada to commence employment
Visit our website at: www.ht-llp.com

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Keeping Track of Your Foreign Workers & Remaining


Compliant
As discussed, it is extremely important that employers understand their obligations to the
temporary foreign worker program and the conditions imposed on them when hiring a TFW.
Employers should conduct an internal immigration audit of their TFWs and collect all necessary
information/documentation to ensure they are in fact compliant.
On the following page you will find a chart which should be used for each TFW currently
employed. The chart will assist in highlighting the most pertinent information and will serve as a
constant reminder of the conditions imposed under their work permit. This chart should serve as
the cover page for each foreign worker file and the file should include copies of the documents set
out in the chart.
Equally important, the chart highlights future obligations and deadlines to encourage immigration
planning to avoid disruptions to your work demands, and adequately prepare the employer for
government investigations. With the four year cap looming for Skill Level B and lower
occupations, employers will need to pay close attention to the expiry dates on work permits to
ensure steps are taken to either transition existing foreign workers into permanent resident status
or alternatively start the process of recruiting new employees once existing staff reach the four
year cap. Please note that all references to LMOs within the flow chart should reflect the new
LMIA regime.

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Preparing for Government Investigations


In an effort to assist employers in their compliance efforts, we have set out below a list of
documents that could be requested in the course of an employer compliance review:

Copy of LMIA confirmation and Annex to ensure work conditions are


correctly stated and being adhered to;
Copy of the Work Permit to ensure position, name of employer, location
and National Occupational Classification Code is correct;
Payroll records which should include at a minimum: the total
number of hours worked, hourly wage, and all deductions to ensure
prevailing wage and overtime are being paid;
Description of duties to ensure the foreign worker is working in the
substantially the same position
Employment Contract to ensure the foreign worker is continuing to
work under the same approved standards and position;
Time Sheets to ensure workers are working the agreed number of
hours;
Registration with provincial/territorial workplace safety to ensure
employer has workplace safety insurance to cover workers in case of
injury;
Proof of payment for transportation costs and accommodation
information (for lower skilled workers);
Copy of Record of Employment if the TFW is no longer employed by
your company;
Copy of a Collective Bargaining Agreement if applicable;
Copy of a Work-sharing Agreement if applicable; and
Health Care Coverage proof that the TFWs health care coverage was
provided at the employers expense until the foreign worker was eligible
for public health care coverage.
Copy of Workplace Health & Safety Insurance to ensure compliance
with workers compensation requirements
Copies of ongoing recruitment efforts to address current staffing
needs this forms a critical component to the high wage Transition Plan
Copies of recruitment efforts submitted in support of the previously
approved LMIA

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Copy of the Recruitment Summary for the Previously approved LMIA


Summary of Canadian/PR hires and separations for prescribed
period this is often requested in the context of a disgruntled employee
that files a TFWP, employment standards or similar complaint
Copies of ROEs for Canadians/PRs issued during the prescribed
period this is also often requested in the context of an employee
complaint
Copies of T4s and Work Schedules for all employees for the
prescribed period once again, requested frequently in the context of an
employee complaint.
Copy of your Abuse-Free Workplace Policy and summary of
companys ongoing efforts to prevent abuse in the workplace
employee complaint driven

Any discrepancies or proposed changes to the working conditions of the foreign worker should be
communicated immediately to ESDC. In some cases, a new LMIA may be required if noncompliance cannot easily be remedied through other means. While demonstrating compliance
poses great challenges for an employer, this significant burden can be made manageable with the
collection of documents, an intimate knowledge of work restrictions, and a greater understanding
of the expectations placed on employers by immigration officials.

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Employer Compliance Reviews (ECR)


TYPICAL STEPS OF AN ECR
Employers will always be notified that they have been selected for a compliance review, and what
type of review (ECR or inspection). This usually occurs via a telephone call from ESDC following
the submission of a new LMIA application. The new LMIA application is typically the trigger point
for the ECR. However, ECRs can also be complaint driven in the context of a disgruntled employee.
Employers will then be informed in writing of the:

steps they need to take;


conditions for which they need to demonstrate compliance;
types of documents they are required to produce; and
dates by which they are required to produce them.

It usually takes approximately 2 weeks following the notice call to receive the ECR letter from the
Integrity Services Branch (ISO). There appears to be no practical reason why the letter is sent via
regular mail. Further, all correspondence must be mailed back to the ISO as they do not accept any
documentation through other means. The employer is often given just 30 days to submit the
response. Given the fact it can take almost 2 weeks to receive the letter, there is often less than 2
weeks to respond including accounting for sufficient time to courier the document to the ISO by
the deadline.
The ISO has asserted that the reason correspondence occurs via mail is to ensure confidentiality.
As all other information can be sent via facsimile or through the online application portal, it would
seem that the desire for confidentiality is at best a remote consideration. It would appear that the
ISO would rather have the ECR process take as long as possible. The completion of an ECR process
can take anywhere from one month to four or five months depending upon the circumstances of
each review. Employers found non-compliant for more serious violations can likely expect the
process to take many months to resolve with a series of questions and responses back and forth
with the ISO until non-compliance has been fully assessed and ultimately rectified.
It is important to note that although justifications do exist to allow an employer to explain why
innocent non-compliance exists, these justifications can only be used by an employer once. If a
subsequent ECR is triggered, the employer will no longer be able to rely upon the same
justification to explain non-compliance. Further, as indicated previously, the government has
proposed additional changes that would allow for monetary penalties regardless of the reason for
non-compliance. In essence, what is being proposed is close to an absolute liability regime.

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Please note that maintaining full compliance is important for not only ECR purposes, but to
minimize the risks associated with breaching employment standards legislation as well. When
filing an LMIA application, employers agree to allow information sharing to occur between ESDC,
the ISO, and other government bodies such as employment standards, workers compensation,
human rights etc. If a non-compliant employer has failed to properly pay overtime to a TFW, this
information may be shared with the respective Provincial employment standards body.
Information sharing can and does occur between the various government bodies.
The government is also seeking the legislative authority to compel banks and payroll
companies to disclose financial and other relevant data regarding an employer under
investigation. These proposals have not yet become law.

HOW TO ENSURE THE ECR GOES AS QUICKLY AS POSSIBLE


To ensure the ECR goes as quickly (and as smoothly) as possible, it is best to be organized upfront
by retaining all documents to demonstrate that the information on the LMIA application and the
terms and conditions set out in the LMIA letter and annexes were accurate from the first day of
employment of the foreign worker and up to 6 years after.
ECRs are not something to be trifled with. When an ECR is triggered, it can hold up not only the
current LMIA application you are in the process of submitting, but if more serious issues of noncompliance exist, new regulations will give Officers the ability to revoke other LMIAs and even
coordinate with CIC to revoke work permits of existing workers if non-compliance is more
widespread.

MINIMIZING THE NEGATIVE CONSEQUENCES OF AN ECR


Because of the serious nature of ECRs, it is wise to work with legal counsel experienced in dealing
with these matters. Legal counsel can help to identify the key issues focused on by the Integrity
Services Officer (ISO) in advance of your response and help to guide you through the process.
Legal counsel can help to determine which documents should be disclosed, organize materials,
and assist in articulating justifications within the submission letter when documents requested
are unavailable. Where required, legal counsel can help you take any corrective action necessary to
show good faith when responding to the ECR.
Because the ECR process can be quite time consuming, anticipating the concerns of the IOS well in
advance and making the corrective action at the onset, can help to reduce the review period
significantly.

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We have enclosed within this handbook a sample ECR letter which provides a general guideline on
what can be expected when dealing with the Integrity Services Branch.
After providing the requested information, if non-compliance is found to exist, employers will be
offered a one time opportunity to provide justifications for initial findings of non-compliance
and, in specific cases, to take corrective action. However, if a second ECR is triggered, and noncompliance has been repeated, employers can expect a much less understanding Program
Integrity Officer.

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SAMPLE SERVICE CANADA ECR LETTER

Service Canada
Integrity Services Branch
Address
Address
DATE

Employer
Address
Address

ER ID # _____

Dear _________________:
As per our telephone conversation on [date], the purpose of this letter is to inform you, as an employer
of temporary foreign workers (TFWs), of your responsibilities under the Immigration and Refugee
Protection Act and Regulations (IRPA/R). In accordance with the April 1, 2011 amendments to IRPR, all
employers who have employed a TFW during the period beginning two years immediately preceding the
application and who are seeking to hire TFWs, must demonstrate that the terms and conditions set out
in previous Labour Market Opinion (LMIA) confirmation letters and annexes were met. Namely, that
they have provided substantially the same (STS) wages, working conditions, and occupation identified
in the previous LMIA confirmation letter and annex.
As part of our employer compliance review, please find the enclosed checklist to be completed and a list
of documents to be provided. The review period will cover the two years immediately preceding the
date on which your current LMIA application was received. Only submit documentation for transactions
which occurred after [date]. The information can be submitted by regular mail only.
* When submitting documents that may contain personal information such as a social insurance
number, the name of an employer other than the TFW, or personal financial codes/bank account
numbers, as an employer, it is your obligation to protect personal information. Please ensure
care is taken to avoid the inclusion of this personal information. Once your documentation has
been reviewed, it may be necessary to contact you for further clarification.
During the review, where it is found that you have not provided wages, working conditions or an
occupation to a TFW that were substantially the same as the terms of employment as stipulated on the
LMIA confirmation letter and annex of the previous job offer, you will have the opportunity to provide a
rationale and undertake corrective actions. ESDC/Service Canada will work with you to implement the
appropriate compensation. Should you not provide a reasonable justification, refuse or only partially
implement compensation, you may be deemed ineligible for the Temporary Foreign Worker Program

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(TFWP). It is important that you be advised that a justification will only be accepted once. If you are
found to have failed an STS assessment, access to the TFWP will be denied for two years. Finally,
where there is reason to believe that you may have not fully adhered to the requirements of the TFWP,
ESDC/Service Canada may share this information with the relevant federal and/or provincial/territorial
bodies where appropriate authorities exist. 3
Your cooperation is appreciated and we look forward to receiving the documentation by [date]. NOTE:
Failure to submit the requested documentation will result in the refusal of your pending Labour Market
Impact Assessment (LMIA) application(s).
Please submit documentation by mail to the investigator below at the following address:
Officer
Address
Address
Address
Once your review has been assigned to an investigator, they will contact you by phone.
Sincerely,
Name
Integrity Services Officer
Number

Please note that in a recent ECR letter received by a client that was allegedly triggered by a disgruntled xemployee, the section in yellow was removed from the letter. This may be some indication as to the type of
ECR being conducted (i.e. LMIA triggered versus complaint driven).
3

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Site Visits
Coming soon will be a special section setting forth specific guidance regarding site visits and
what to expect when they happen. At the time of preparing this guide, no site visits had yet
taken place. We will ensure to update you regarding the ways in which you can minimize the
negative consequences of these surprise visits.
Topics covered will include:

WHAT TO EXPECT WHEN AN OFFICER STOPS BY YOUR BUSINESS


KNOWING THE BOUNDARIES OF AN OFFICERS JURISDICTION: WHAT THEY CAN AND
CAN NOT DO DURING A SITE VISIT
HOW TO MINIMIZE THE NEGATIVE CONSEQUENCES OF A SITE VISIT
Visit our website for updates at: www.ht-llp.com

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Online Resources
RECRUITMENT RESOURCES

www.jobbank.gc.ca (National Job Bank)


www.monster.ca
www.careeraim.com
www.jobboom.com
www.workopolis.com
www.indeed.ca
www.jobshop.ca

NATIONAL OCCUPATIONAL CLASSIFICATION WEBSITE

National Occupational Classification 2006:


http://www30.hrsdc.gc.ca/NOC/English/NOC/2006/Welcome.aspx
Matrix: http://www30.hrsdc.gc.ca/NOC/English/NOC/2006/html/Matrix.html

WAGES

Job Bank Website: http://www.jobbank.gc.ca/

LABOUR MARKET OPINION APPLICATION PROCESS

http://www.esdc.gc.ca/eng/jobs/foreign_workers/

LABOUR MARKET INFORMATION

Job Bank Website: http://www.jobbank.gc.ca/

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Company Information Holthe Tilleman LLP


As a dedicated Business Immigration law firm, we have particular expertise in assisting Canadian
based corporations and businesses with respect to the recruitment and retention of foreign skilled
and semi-skilled workers. We also place significant emphasis on assisting employers in
maintaining compliance with the Temporary Foreign Worker Program including preparing for
government immigrations audits and site inspections.
We have worked hard to foster positive relationships with government Officers and in establishing
ourselves as the firm of choice for any corporation seeking to relocate or transfer key employees
to Canada. We also offer direct assistance to individuals seeking assistance in navigating the
complex web of Canadian immigration law.
Holthe Tilleman LLP

Holthe Tilleman LLP

#10, 24 Mt. Burke Blvd. West, Lethbridge, Alberta


T1K 7X9

505, 10333 Southport Road SW, Calgary, Alberta


T2W 3X6

Tel 403.328.1441

Tel 403.236.7332

Fax 403.328.2229

Fax 403.236.7331
www.ht-llp.com

www.ht-llp.com

MARK HOLTHE
PARTNER

RYAN TILLEMAN
PARTNER

MARIANA HOHMAN
ASSOCIATE LAWYER

Tel 403.328.1441
Fax 403.328.2229
mholthe@ht-llp.com

Tel 403.236.7332
Fax 403.236.7331
rtilleman@ht-llp.com

Tel 403.453.2557
Fax 403.328.2229
mhohman@ht-llp.com

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