Employers who will not need an LMIA

Employers who will NOT need an LMIA: Exemptions based on Agreements

You may already know that most employers will require a Labour Market Impact Assessment (LMIA) before they can hire a temporary foreign worker. However, there are always exceptions; not all employers need to obtain a positive LMIA before they may hire a temporary foreign worker. If you are not sure whether you need an LMIA, or you think that you might be exempt from the normal LMIA requirements, please read this blog for more information.

Two Categories of LMIA Exemptions

There are two broad categories of LMIA exemptions:

1. Exemptions based on Agreements
2. Exemptions based on Canadian Interests

This post will focus on LMIA exemptions based on agreements.

LMIA Exemptions Based On Agreements

International Trade Agreements and Federal-Provincial/Territorial Agreements allow certain categories of workers to work in Canada without a positive LMIA. That means that the employer will not first have to secure a positive LMIA before the worker can begin work in Canada. In some cases, the worker may still have to apply for a work permit before they can begin working in Canada

Agreements can mean the following:

1. International Free Trade Agreements
2. Canada-International Non-Trade Agreements
3. Federal-provincial/territorial Agreements

Each will be discussed in more detail below.

a) International Free Trade Agreements

Canada has entered into various free trade agreements with other countries:

• North American Free Trade Agreement (NAFTA) – between Canada, United States, and Mexico
• Canada-Chile Free Trade Agreement
• Canada-Peru Free Trade Agreement
• Canada-Colombia Free Trade Agreement
• Canada-Korea Free Trade Agreement

The above agreements allow citizens (and sometimes even permanent residents) of those countries to enter and work in Canada without an LMIA. Under these trade agreements, foreign workers are authorized to enter Canada as Traders, Investors, Professionals, or Intra-Company Transferees. There are certain requirements a foreign worker must meet before they can qualify under these categories.

For business persons who are covered by an international free trade agreement, work permits are generally required to work in Canada. However, business visitors are an exception; business visitors will not require work permits to come to work in Canada.

Significantly, each international free trade agreement is not identical to the others. For example, some allow permanent residents of a country to be covered by an agreement (e.g. Canada-Peru Free Trade Agreement) while other agreements are only applicable to citizens (e.g. NAFTA).

There are also variations between each category’s definitions and requirements. For instance, the list of Professionals that are exempted from an LMIA under the NAFTA is not the same as the list of Professionals and Technicians that are exempted from an LMIA under the Canada-Peru Free Trade Agreement. Another example is the varied definition of business visitor between the NAFTA and Canada-Peru Free Trade Agreement. Depending on the country you hold citizenship in, you will have to refer to the correct international free trade agreement to ensure your prospective employee will in fact, be LMIA exempt.

General Agreement on Trade in Services (GATS)

Canada is also involved in the General Agreement on Trade in Services (GATS). Under the GATS, business persons who are citizens of a Member nation (and permanent residents in the case of Australia and New Zealand) are permitted temporary entry to Canada. Qualified business persons will not need to apply for an LMIA before they are permitted to enter Canada and work in Canada, though they may still require a work permit.

The three categories of business persons are Business Visitors, Intra-Company Transferees, and Professionals.

Similar to the other International Trade Agreements, there are certain requirements a foreign worker must meet before they can qualify under these categories. Foreign workers who are coming to Canada as a Business Visitor will generally not need a work permit or an LMIA. Foreign workers who are coming to Canada as an Intra-Company Transferee or a Professional will need a work permit, but not an LMIA.

b) Canada-International Non-Trade Agreements

Individuals who are covered under these non-trade agreements generally will not need an LMIA or a work permit:

• Airline Personnel
• Airline Telecommunication & Information Services (SITA)
• Canada-Bermuda Memorandum of Understanding, Professional Trainees
• Canada-U.S. Understanding of Arrangement
• Cooperative Waterfowl Survey & Banding Program
• Public Safety Canada
• Film co-production
• Fulbright Program between Canada and the U.S.
• International Air Transport Association (IATA)
• International Pacific Halibut Commission
• Jamaica: Seasonal Agricultural Program, Liaison Officers
• Malaysia, Professional Accounting Trainees
• North Atlantic Treaty Organization (NATO)
• North Pacific Marine Science Organization (PICES); North Pacific Anadromous Fish Commission (NPAFC) and Northwest Atlantic Fisheries Organization (NAFO)
• Organization for Economic Co-operation & Development (OECD)
• Pacific Salmon Commission (PSC)
• Roosevelt Campobello International Park
• Scientific and Technical Cooperation Agreement between Canada and Germany
• Telefilm
• U.S. Government Personnel

Although individuals covered by these non-trade agreements will generally not require an LMIA or work permit, there are some situations where an individual may be required to have a work permit. For example, if an individual’s stay in Canada under a non-trade agreement is for many years, it may be necessary for them to have a work permit. However, even if these individuals require a work permit, they will not need an LMIA.

c) Federal-provincial/territorial Agreements

Lastly, there are also agreements that are between the federal and provincial governments, or the federal and territorial governments in Canada. Under these agreements, an employer may not need to obtain a positive LMIA before a foreign worker may be issued a work permit if the position falls within one of the three following categories:

• Significant Investment Projects
• Exceptional or Unforeseen Events
• Foreign worker protection

Please note that the LMIA exemption is not automatic. The employer will have to apply to Citizenship and Immigration Canada to be considered for an LMIA exemption, and Citizenship and Immigration Canada must subsequently allow the LMIA exemption.

• Provincial or Territorial nominees

Foreign workers who have applied to a provincial nominee program, received a valid nomination for permanent residency, and is currently employed or has a job offer from an employer in the province/territory they hold the nomination, will not need an LMIA before they may be issued a work permit.

However, the foreign worker must submit the appropriate supporting documents when applying for a work permit. These documents must be included:

• “Offer of Employment to a Foreign National Exempt from a Labour Market Impact Assessment” (Form IMM 5802)
• Proof the employer has paid the employer compliance fee
• Copy of the provincial/territorial nomination letter
• A statement from the province/statement confirming that the province/territory has met its obligations as per the agreement with Canada

If a foreign worker does not include the above documents, they will not be considered to be LMIA exempt, and subsequently, they will not be issued a work permit.

Contact Akrami & Associates

The above information is only a brief overview on categories of foreign workers who may not need an LMIA. If you are an employer and you are not sure whether you will need to obtain an LMIA, please contact Akrami & Associates for more information. We can provide assistance and guidance for your matter.

With Akrami & Associates, there is always a way!