The changes to the TWFP announced by the Government of Canada in its Economic Action Plan 2013 were aimed at strengthening and improving the TFW Program in order to support Canada’s economic recovery and growth, and to ensure that more Canadians are hired by more employers.
Effective July 31, 2013, the following changes to the TFWP came into effect.
1. Fee for Labour Market Opinion (LMO) processing
- Employers applying to hire TFWs must now pay a processing fee of $275 for each position requested. For example, if you are requesting LMOs for 10 software designers, then the LMO processing fee will be $2,750.
- The payments can be made by certified cheque payable to the Receiver General of Canada, money order, Visa, MasterCard, and American Express.
- There will be no refund in the event of a negative LMO or if the LMO application is withdrawn or cancelled.
Employers hiring TFWs for on-farm primary agricultural positions (under NOCs codes 8251, 8252, 8253, 8254, 8256, 8431, 8432 and 8611), under Seasonal Agricultural Worker Program, or the Agricultural Stream are exempted from the fee.
2. Language Restrictions
New subsection 203(1.01) of the Immigration and Refugee Protection Regulations introduces a new language assessment factor:
- English and French are the only languages that can be identified as a job requirement (both in LMO requests and in advertisements by employers); unless employers can demonstrate that another language is essential for the job.
Employers hiring TFWs for on-farm primary agricultural positions (under NOCs codes 8251, 8252, 8253, 8254, 8256, 8431, 8432 and 8611), under Seasonal Agricultural Worker Program, or the Agricultural Stream are exempted from the language restriction.
Demonstrating the need for a language other than English or French
Employers must clearly demonstrate in writing that the language requested is consistent with the regular activities of the job. For example, a translation company hiring a translator to work in a language other than English or French, or a tour company catering to foreign tourists only in a non-official language would require a language other than English or French.
3. New Advertising Requirements
Starting July 31, 2013 employers are required to make greater efforts to hire Canadians before they will be eligible to apply to hire TFWs:
- Employers must advertise positions for at least four weeks before applying for an LMO (this requirement applies to all advertising methods);
- Employers must advertise in 3 separate sources. In addition to advertising on the national Job Bank website (or the equivalent provincial websites), employers must prove they have used at least two other recruitment methods:
- If hiring for a higher-skilled occupation – one method must be national in scope (ex. Craigslist or Kijiji);
- If hiring for a lower-skilled occupation – employers must demonstrate that they made efforts to target under-represented groups in the work force.
- Employers must show ongoing recruitment efforts until an LMO has been issued. Effective immediately, employers must re-institute all recruitment advertisements to show an ongoing recruitment effort of 3 types of recruitment.
NOTE: The new advertising requirements regarding 4 weeks as opposed to 2 weeks of advertising will be effective for LMO applications submitted starting August 28, 2013. As such, if an employer complied with the old advertising requirement, namely 2 weeks within 3 months prior to application for LMO requirement, an LMO application could be filed at this time. However, the employer needs to continue to advertise for the required position again for the duration of the LMO processing period in order to satisfy the new ongoing recruitment effort requirement.
Please note that the August 28, 2013 grace period applies only to the advertisement requirements. Effective July 31, 2013 employers are required to comply with the new requirements for using new LMO application forms, new fees payments, and ongoing recruitment efforts.
The new advertising requirements do not apply to the Live-In Caregiver Program, positions related to on-farm primary agricultural positions (under NOCs codes 8251, 8252, 8253, 8254, 8256, 8431, 8432 and 8611), Seasonal Agricultural Worker Program, and the Agricultural Stream.
4. New LMO Applications with Questions on Impacts on the Canadian Job Market
As of July 31, 2013 employers are required to respond to additional question on the LMO applications.
The LMO assessment will be done in terms of the impact that hiring a TFW will have on Canada’s job market, based on available labour market information for the region and occupation.
A negative LMO will be issued if an assessment indicates that hiring a TFW will have a negative impact on the Canadian Labour Market or if an employer has not complied with the program requirements.
For more information on how these changes may affect you, please contact Green and Spiegel, LLP.