- By Andrew Carvajal
Learning Moments - Changes to the LMIA Recruitment Process
This article by Andrew Carvajal is part of the Immigration Education Alliance (IMEDA) weekly column titled "Learning Moments" and published online http://campaign.r20.constantcontact.com/render?m=1111379240993&ca=81864739-14e2-4a1b-bbdc-3c105d3cfd43
Hello fellow practitioners. Today's column deals with a very timely topic: the soon to be implemented changes to the LMIA recruitment process.
Reader's question
My question is rather time sensitive as I need to make a decision regarding an LMIA application that I am finalizing with my client. The company is in Saskatchewan and it is recruiting a welder in the high wage LMIA stream. They have advertised the position for almost 6 weeks and the application is almost ready. I know that the LMIA recruitment rules are changing soon and I am wondering the following:
If the client started advertising before the changes came into effect, are they bound by the old rules regardless of when they submit the application?
If they submit the application before the changes are implemented, are they bound by the old rules?
Or, even if they submit the application before the changes, are they required to follow the new rules while the application is processing? Since the processing will take some weeks and the client needs to continue advertising, I want to know what rules to follow.
Any guidance on this would be greatly appreciated.
Answer
These are timely questions and a great opportunity to introduce the new recruitment requirements for the Temporary Foreign Worker Program that become effective as of Monday, August 28, 2017.
We will summarize the changes and then answer our reader's questions based on confirmation that we have received from Service Canada's employer contact centre.
For employers like the one in our reader's case, who are located in Saskatchewan, British Columbia or Quebec, they can no longer avoid advertising on the Job Bank. Prior to the changes, employers where required to advertise on Canada's Job Bank or its provincial counterpart in those three provinces. In addition, they are required to use two other recruitment platforms.
As of August 28, 2017, if employers are from a province with a provincial or territorial job board, they will be required to use the Job Bank, and may use a provincial or territorial job board as one of the additional methods of recruitment.
This change is quite significant and must be taken into consideration by employers all over the country.
There is, theoretically, still the option to ask for an exemption to using the Job Bank in the LMIA application. However, we have heard that this exemption is rarely granted.
While the Job Bank is quite limited because of the fact that it does not allow free text, we have found that there are ways to find additional duties, skills, areas and specializations if you look for the right words when preparing the advertisements.
The new site also allows employers to put a link to an external website. We often have the client put together a document that they upload online and link this document to the Job Bank advertisement. In that document, we include all of the wording in the advertisement that we were limited from including due to Job Bank's restrictions.
The reason why the government is so insistent about the use of the Job Bank has to do with the next requirement that is being introduced on August 28, 2017. The government is obliging employers to use the Job Bank's sister site, Job Match, as part of their recruitment efforts. Many of you may be familiar with Job Match due to your involvement in uploading clients' Express Entry profiles.
As per the government description [1]: The Job Match service will allow you to see anonymous profiles of registered job seekers which correspond to the skills and requirements outlined in your job posting. Each match will be rated using a star system of one to five stars. The more stars received by the match, the greater the compatibility between your advertised position and the anonymous job seeker.
For those of you who have access to employers' postings in Job Bank as an authorized representative, you would have noticed that Job Match matching has been enabled for some time. When extending an advertisement the system also asks whether you have used Job Match, which prior to the changes had no impact on the LMIA application.
As of August 28, when seeking to fill a low-wage position, employers will be required to invite all job seekers matched through Job Match within the first 30 days of the job advertisement to apply for the position if they are rated two stars or more.
In the case of high-wage positions, employers are required to invite all job seekers matched within the first 30 days of the job advertisement to apply for the position if they are rated four stars or more.
Inviting applicant is easy. You just click on their anonymous profile matched to the job posting and select "Invite to Apply". The system keeps track of who was invited and who has not been invited yet.
One thing that is worth noting is that there may be many foreign applicants registered in Job Match. While registration in Job Match is no longer mandatory after June 2017 when uploading most Express Entry profiles, there could well be a number of foreign applicants in the system. As profiles in Job Match are anonymous, you cannot distinguish which applicants are Canadian citizens or permanent residents and which are not.
Since employers navigating the LMIA process are only required to keep track of applicants who are Canadian citizens or permanent residents, foreign applicants do not need to be considered and can be screened out. However, we suspect that this new requirement will certainly result in far more applications from foreign individuals who are encouraged by the employer to apply through the Job Match portal. Employers will likely need to be screening out more applicants and inquiring about their status as part of the LMIA recruitment process, unless Job Match is fixed to filter such applicants for LMIA purposes.
The last significant change that will be introduced on August 28, 2017 pertains to recruitment for low-wage positions. Prior to the changes, those recruiting for such positions must have targeted in their additional recruitment platforms at least one of the underrepresented groups in the labour market: indigenous persons, youth, new immigrants, and persons with disabilities. As of next week, the additional methods used will be required to target at least two of the underrepresented groups: indigenous persons, vulnerable youth, newcomers, and persons with disabilities.
Having summarized the changes, let us address our reader's question regarding the implementation of the new requirements. We have been informed by Service Canada's employer line that applications submitted prior to August 28, 2017 are not subject to the new recruitment requirements. This is regardless of the fact that you must continue recruitment efforts after submission.
However, even if an employer started advertising prior to the changes and is in the process of preparing an LMIA application, they will be subject to the new recruitment rules if the application is submitted after August 28. In our reader's case, we advice submitting the application this week, otherwise the employer would have to advertise in Job Bank in addition to saskjobs.ca and follow the Job Match invitation criteria.
[1] https://www.canada.ca/en/employment-social-development/services/foreign-workers/median-wage/low/requirements.html#h2.6
Andrew Carvajal is a Toronto lawyer and partner at Desloges Law Group specializing in immigration law, administrative law and Small Claims Court litigation.
Twitter: @CarvajalLaw
Email: acarvajal@desloges.ca
