December 29, 2020

Employer Alert: Updates on LMIA Restrictions and Ineligibility

Posted by Lijing Cao - Bellissimo Law Group PC

Unless certain exemptions apply, Canadian employers looking to hire foreign workers would first need to obtain a positive Labour Market Impact Assessment (LMIA) opinion from the Employment and Social Development Canada (ESDC). Nonetheless, some employers may not be eligible to apply for an LMIA due to restricting conditions regarding eligibility of employers for the Temporary Foreign Worker Program (TFWP), as well as public policy considerations during the COVID-19 pandemic.

Ineligible Employers

Ineligible employers include those who have been found non-compliant as a result of compliance review, banned from the TFWP because of non-compliance, or are in default of an administrative monetary penalty payment. There is an ineligibility list published on the IRCC’s website, where you can easily search for the most updated list of employers who have been found non-compliant. Employers offering services in the sex industry are also ineligible.

Restricted Industry Sectors and Positions

Apart from ineligible employers, some LMIA applications submitted by eligible employers may be refused to process by the ESDC due to the impacts of COVID-19, including positions that fall into the following categories:

  • North American Industry Classification System (NAICS) Sector 72 (Accommodation and food services) or Sector 44-45 (Retail trade), and classified under listed National Occupational Classification (NOC) codes:
    • 6541 (Security guards), 6611 (Cashiers), 6622 (Store shelf stockers, clerks and order fillers), 6711 (Food counter attendants and kitchen helpers), 6721 (Support occupations in accommodation, travel and facilities set-up services), 6731 (Light duty cleaners), 6732 (Specialized cleaners), 6733 (Janitors, caretakers and building superintendents), 7611 (Construction trades helpers and labourers) and 8612 (Landscaping and grounds maintenance labourers).
  • Low-wage positions above the 10% (or 20%) cap on the number of foreign workers an employer is allowed to hire at a specific work location.

Positions in the Province of Alberta

Most LMIA applications for positions in Alberta would not be eligible for processing as a result of the COVID-19 pandemic, unless the positions qualify for exemptions which are listed as exempt occupations eligible for processing. Some of the exempt occupations fall into the following NOC codes[1]:

  • 0213 (Computer and information systems managers), 0432 (Fire chiefs and senior firefighting officers), 0821 (Managers in agriculture), 2161 (Mathematicians, statisticians and actuaries), 2171 (Information systems analysts and consultants), 2172 (Database analysts and data administrators), 2173 (Software engineers and designers), 2174 (Computer programmer and interactive media developers), 2271 (Air pilots, flight engineers and flying instructors), 3111 (Specialist physicians), 3112 (General practitioners and family physicians), 4011 (University professors and lecturers), 5131 (Producers, directors, choreographers and related occupations), 5241 (Graphic designers and illustrators), etc.

Additionally, short-term duration (30-day or less) technical work, Express Entry application in support of permanent residence, Global Talent Stream and certain in-home caregiver positions may qualify for exemptions.

Prior Revocation

If an employer had an LMIA application revoked in the past two years due to providing false, misleading or inaccurate information, its application may be refused for processing.

Due to the fluid circumstances arising from the pandemic, immigration policy is changing constantly. Before acting on this information, you should consult a legal practitioner about your unique circumstances.