Archive for category: LMIA

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Success: LMIA (low wage)

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We love helping small businesses in Manitoba. We know how difficult it can be for small businesses to find and retain workers. We regularly get calls from small business owners who are frustrated that they cannot find workers. Canada is currently in crisis. Minister Miller has announced that IRCC has a plan to significantly reduce the number of temporary foreign workers (TFWs) and international students. Despite these plans, we know the importance of these workers for businesses in Manitoba.

Congratulations to our client for their positive Labour Market Impact Assessment (LMIA) (low wage) to help their business. They can now hire a worker with the necessary skills and experience so they can build their business and, in turn, help the economy in Manitoba.

Business Immigration Lawyers in Manitoba

This is a niche area. Many LMIA applications are refused. We see many business owners after they have retained an immigration consultant who has not done a good job. They are frustrated with a refusal from Service Canada. As an expert who has presented on this topic to students at BCIT – School of Business in Vancouver, Alastair Clarke takes pleasure as a business immigration lawyer in Manitoba to assist clients at CIL.

This is a common situation, unfortunately, and it is an area of law with a high rate of corruption and shady practices.

These are applications that are not processed by IRCC. They used to be within the realm of IRCC (then known as CIC) but, based on the high number of questionable applications, the power to process these applications was transferred to Service Canada.

Regulation 203(3)(a) of the Immigration and Refugee Protection Regulations (the “IRPR“) states:

(3) An assessment provided by the Department of Employment and Social Development with respect to the matters referred to in paragraph (1)(b) shall, unless the employment of the foreign national is unlikely to have a positive or neutral effect on the labour market in Canada as a result of the application of subsection (1.01), be based on the following factors:

(a) whether the employment of the foreign national will or is likely to result in direct job creation or job retention for Canadian citizens or permanent residents

ESDC has published significant information online to describe the process on how to hire a temporary foreign worker. According to internal manuals at ESDC, Officers will consider the following questions:

  1. How will the staffing of this position lead to direct job creation or retention?
  2. How many jobs will be created/retained?
  3. What are the job titles?
  4. When will the positions be filled?
  5. Are the positions full-time or part-time?
  6. What is the duration of the positions?
  7. Will the positions be staffed with Canadians / permanent residents?
  8. If the LMIA is for a high-wage position does the Transition Plan reflect an activity which supports job creation or retention?
  9. Will the employment of the foreign national lead to job losses, now or in the foreseeable future, for Canadians or permanent residents?

ESDC Processing Timeline

Service Canada Officers work quickly to process LMIA applications. Unlikely IRCC, ESDC applications are processed quickly and Officers may be extremely hands-on. As we have published before, we have included the fast processing of LMIA application for our clients. 

In the above case, our client was interviewed by the Service Canada Officer who confirmed the details of the application. We made sure our client was prepared for the interview. All the details were confirmed and our client got a positive result.

Success: IAD Appeal

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I could have opted for many titles to this post. I could have written, “Success: Study Permit” or “Success: Spousal Sponsorship” or “Success: LMIA” or “Success: PGWP”. All these titles would have been accurate and worthy of publishing. We have previously posted past successful decisions of these types. We have been extremely busy at CIL and we have had many positive decisions to end 2022. As you may know, the team at CIL are the best immigration professionals in Manitoba (possibly Canada) and we have been busy trying to help our clients.

We may provide details on the positive LMIA application at a later date. We may also provide details on the Study Permit. That client had previous refusals and she is a mature student who is not a typical Study Permit applicant; however, our package addressed the issues and followed the CIL principles to success.

The basic facts of the IAD appeal:

  • Sponsor was convicted in Canada in 2018.
  • Sponsor submitted Spousal Sponsorship application for his wife in 2019.
  • Visa Officer expressed concerns re R133 in a PFL in 2019.
  • Sponsor retained CIL to reply to PFL and, if refused, appeal to IAD.
  • As expected, PR application was refused and we submitted Notice of Appeal.
  • CIL prepared and submitted +400 pages of evidence to the IAD.
  • Minister’s Counsel objected to our arguments and defended Visa Officer’s refusal.
  • On 14 SEPT 2022, CIL called 6 witnesses and provided extensive legal submissions.
  • In a decision dated 11 DEC 2022, IAD Member Daniel Tucci agreed with our arguments and granted the appeal.

Our clients are extremely happy, of course. We have many reasons to celebrate. I have often opined that Canadian citizens with criminal convictions should be allowed to sponsor their family members if they have properly served their time in prison. Criminal proceedings should remain in the criminal courts. Immigration proceedings are separate and apart. If the Sentencing Judge (on the criminal side) believed the sentence was not sufficiently punitive, that judge had the power to amend the sentence. Once that sentence has been ordered, however, the individual should not face additional repercussions. They should not be separated from family members. They need to be able to move on and learn from their past mistake(s).

I have to be honest. I was quite worried that IAD Member Tucci was going to refuse our appeal. Minister’s Counsel was extremely unsympathetic to our client’s situation. In past IAD appeals, Minister’s Counsel has been more agreeable to our legal arguments and the family’s circumstances. During the hearing Member Tucci asked many questions of the Sponsor, the Applicant and all the witnesses. He was actively engaged in the proceedings. Based on his questions, it was not clear whether he was sympathetic to the separation of this family.

In more than 15 years of IAD appeals, I have still not yet lost an appeal. I know that I will eventually lose an appeal. I do not know whether this refusal will be in 2023, 2024 or 2030. We will continue to fight for our clients.

The IAD has just announced changes to the IAD Rules. We are currently reviewing the changes and we may be reporting our thoughts in this space.

Success: LMIA

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In late 2019, we were contacted by a large Trucking company in western Ontario for assistance with multiple Labour Market Impact Assessments (LMIAs). The company had previously retained another law firm in Winnipeg and they were not satisfied with the quality of professionalism of that firm. (As an aside, that firm has terrible ratings on Google so this is not a surprise.) We reviewed the shoddy work of the previous representatives and prepared new LMIA applications based on our research.

We submitted the new LMIA applications to Employment and Social Development Canada (ESDC) in January 2020 and the application was approved in February 2020. Processing time: one (1) month only – much faster than average processing time.LMIA

Needless to say, our clients were very happy with our work and the positive results. This company can now focus on building business and hiring Long Haul Truck Drivers which is where they should be spending their time & energy. The processing of LMIA applications includes strict guidelines and advertising requirements. As Alastair stated during his presentation at BCIT in Vancouver, if the LMIA is not done properly at first instance, it may be more difficult for this company to obtain a positive decision on future LMIA applications.

NOTE: LMIA applications have a high rate of refusal and we would recommend retained a competent law firm to assist. These applications are assessed based on labour market demands in specific regions and the ability of the company to find and recruit Permanent Residents or Canadian citizens. In this case, our clients could not accept further contracts and they were severely limited in its potential growth. Furthermore, these positions remained unfilled for a long period of time based on the incompetence of the previous law firm, causing unnecessary delays and expenses.

Fast Processing of LMIA Applications

We are very pleased with the work done by the Service Canada Officer with the LMIA approval. Given the previous work and the difficult immigration history, our clients were extremely happy with the fast processing time; however, we believe that if this company had retained us at first instance, it would have been faster.

The LMIA program is often plagued by long delays and onerous reporting requirements.  We were happy with the results with this corporate client and we look forward to assisting other businesses to overcome labour shortages so Canadian businesses can focus on their specialty.

Presentation on Labour and Immigration

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At the request of instructor Bill Mathieson in the School of Business, Alastair gave a presentation at BCIT in Vancouver on the intersection between labour laws and immigration, including LMIA applications and MPNP-BIS. In particular, the presentation focused on Charter rights and laws in Canada that intersect these different areas of law. Labour laws in Canada are complex and these laws have an impact on workers, businesses, employers and individuals. Each one of these categories may be subject to different laws and regulations.

labour

In particular, employers in Canada need to be aware of compliance issues and adhering to Charter rights. This was a presentation that was done spontaneously at the request of Bill and it was a pleasure to meet these students. The BCIT students were actively engaged with the topic and they are clearly well informed with some of the legal issues that they may face when they become HR Managers or other professionals in Human Resources.

If you or your company is seeking legal advice on the intersection between labour laws and immigration laws, please contact Clarke Immigration Law directly for assistance. 

Bill Mathieson is a senior lecturer with deep roots in Vancouver. He is one of Canada’s top labour negotiators and he has provided instruction to students at BCIT as well as SFU – School of Business.

CLEA: Immigration Presentation

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As part of the Law in the Library series, Alastair Clarke will be giving a free presentation to the public on May 19, 2015 at St. Vital Library. Everyone is welcome to attend.

Topics:

  • Spousal Sponsorship applications
  • Temporary Resident Application
  • Temporary Resident Permits
  • Citizenship Applications
  • Dependent Children – changes to the definition in IRPA
  • Manitoba Provincial Nominee Program
  • And more more.

For more information, check out the CLEA Website for more details and to RSVP.