New Challenges With LMIA Exempt Work Permits: Employer Genuineness Test To Be Applied

On February 23, 2018, Immigration, Refugees and Citizenship Canada (“IRCC”) released a program delivery update, setting out instructions immigration officers must follow when assessing employers under the International Mobility Program  (“IMP”) during work permit processing.

As a result of this program delivery update, officers are now instructed to assess the genuineness of the Offer of Employment (“Offer”) provided in support of the work permit application by the employer. Officers must also conduct a more stringent review of the wages, occupations and working conditions provided to previous temporary workers by the employer.

Below we have provided an overview of the “genuineness test.” You can also read more about the more stringent review of wages, occupation and working conditions in our companion blog

What Type of Work Permits Does the “Genuineness Test” Impact?

These changes will affect work permit applications made under the IMP, an immigration program that allows employers to hire foreign workers to fill short-term labour and skill shortages.

Unlike other immigration programs, the IMP eliminates the requirement that an employer establish that there are no Canadians or permanent resident available for a position. This makes IMP work permit applications exempt from Labour Market Impact Assessment (“LMIA”) requirements.

Although employers do not have to secure a LMIA when using the IMP, they are required to submit an online Offer of Employment through the IRCC Employer Portal before the work permit application is made. The Offer contains critical details regarding the employer, foreign worker, occupation, wages and working conditions.

Please note that open work permits under the IMP – work permits that are not connected to a specific employer – are not subject to this assessment as there is no employer or Offer involved to check for genuineness.

How Is the “Genuineness Test” Applied?

When assessing an employer specific work permit application under IMP, officers must now assess the genuineness of the Offer submitted by the employer online. This is in addition to confirming that the Offer is fully complete and accurate.

To assess whether an Offer is genuine, officers will now review the following criteria:

  • The Offer must be made by an employer who is “actively engaged” in business;
  • The Offer must be consistent with the reasonable employment needs of the employer;
  • The Offer must have terms the employer is reasonably able to fulfil; and
  • The Offer must be from an employer or its authorized recruiter who has shown past compliance with federal and provincial or territorial laws that regulate employment or recruitment in the province or territory where the foreign national will be working.

If the officer finds that the Offer does not satisfy all of these four factors, the officer has several options on how to proceed, depending on the circumstance:

  • The officer may put the work permit application on hold and request further details from the employer, giving the employer the opportunity to respond to the genuineness deficiencies before a work permit refusal occurs.
  • The officer may put the application on hold and refer the matter to investigations. In those cases a full investigation would have to complete before work permit processing resumes.
  • The officer may outright refuse the work permit application without further contact with the employer.

How Will This Impact Employers?

The requirement to review the genuineness of an Offer may create new challenges for employers wanting to use the IMP as a fast and easy work permit option. These changes have the potential to delay the processing of employee work permit applications as officers are now being asked to complete a number of steps to verify the information set out in the Offer.

Employers can expect that reviewing officers will now undertake more direct follow up with the employer, possibly requesting additional documents and calling them directly to confirm the information provided, creating delays. This will also expose the employer to the increased possibility of inspections and compliance liability. As a result, employers will have to review their processes to ensure that they are providing all required information and documentation to ensure a successful work permit application.

MLT Aikins has significant experience advising clients with regards to immigration matters. Our lawyers in this practice area would be pleased to discuss the recent IRCC program delivery updates and how they may impact your business and foreign workers.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.