The Temporary Foreign Worker Program (TFWP) was implemented to fill Canada’s labour shortage by giving employers the opportunity to hire temporary foreign workers to fill job positions when Canadians or permanent residents are not available.  Generally, employers under this program are required to first obtain a Labour Market Impact Assessment (LMIA), which is a determination by Employment and Social Development Canada (ESDC) on whether hiring a foreign worker will have a negative or positive impact on the Canadian labour market.  However, ss. 204 -208 of the Immigration and Refugees Protection Rules (IRPR) provide for the issuance of work permits which are LMIA-Exempt.  

 

Presently, the program allows employers to hire temporary foreign workers under 4 streams: High-Wage Position Stream, Low-Wage Position Stream, Agricultural Stream, and the Seasonal Agricultural Workers Program (SAWP).

 

High-Wage Position Stream

A high-wage position is determined by assessing the base wage being offered against the province's or territory’s median wage. Where the wage offered is at or above the median wage, an employer must hire under this stream. Prior to submitting an application, employers are required to pay a processing fee of CAD$1000 per position, which may be waived in the case of caregivers. 

 

Employers must conduct recruitment efforts to hire Canadians and permanent residents before offering a job to a temporary foreign worker. This includes advertising the job position within 3 months of applying for an LMIA for a minimum of 4 consecutive weeks. They are also required to submit a Transition Plan which describes activities to be undertaken to recruit, retain and train Canadians and permanent residents and to reduce reliance on the TFWP, unless exempted. Employers must ensure that the position meets labour and employment standards, and workplace safety insurance is provided, where required.

 

Low-Wage Position Stream

Positions offered where the wage is below the provincial or territorial median wage are deemed low-wage positions. Like high-wage positions, a processing fee of CAD$1000 per person must be submitted with the application; a fee waiver may be provided in the case of caregivers. The position must be advertised for a minimum of 4 consecutive weeks within three months of submitting the application.

 

On 20 June 2014, IRCC implemented a policy which limits the number of foreign workers an employer can hire in low-wage positions at a specific work location. Particularly, if an employer hired a temporary foreign worker prior to 20 June 2014, positions for foreign workers at that specific location must constitute no more 20% of the workforce or as per the employers’ established cap, whichever is lower. If, on the other hand, the employer hires a temporary foreign worker after 20 June 2014, they are limited to hiring only 10% of foreign workers. Despite this policy, the following positions may be exempted: On-farm primary agricultural positions; caregiver positions; positions offered to support a permanent resident application under Express Entry; positions where an employee has fewer than 10 employees nationally, positions for 120-days or less; positions in seasonal industries with a duration of less than 180 calendar days.

 

As of 2 December 2019, ESDC commenced accepting applications with a 2-year employment duration for selected positions in meat processing, to support temporary foreign workers applications for permanent residence through either the federal Agri-Food Immigration Pilot, a provincial nominee program, or a Quebec immigration program. These positions must fall under one of the following categories: Retail butchers (NOC B 6331); industrial butchers (NOC C 9462); farm supervisors and specialized livestock workers (NOC B 8252); food processing labourers (NOC D 9617).

 

Employers under this class have additional responsibilities, compared to those in the high- wage position stream. Notably, they are required to cover the cost of the temporary foreign worker’s travels to and from Canada, ensure the availability of suitable and affordable housing, guarantee health insurance coverage and workplace safety insurance (where required), and provide an employment contract.

 

The Agricultural Stream

The Agricultural Stream allows employers to hire temporary foreign workers for a maximum period of 24 months when Canadians and permanent residents are not available. To qualify for this stream, production must be in specific commodity sectors and the activity must be related to on-farm primary agriculture. There are different rules applicable to employers hiring in Quebec. 

 

An LMIA processing fee is not applicable under this category.  The temporary foreign worker’s transportation cost to and from Canada must be undertaken by the employer, as well as transportation to and from the worksite, upon their arrival in Canada. They may deduct housing expenses at a capped amount subject to provincial/territorial labour standards, or an employee may find separate accommodation. In addition, employers must guarantee health insurance coverage and workplace safety insurance where required and provide an employment contract. The employer must conduct recruitment activities and advertise the position for a minimum of 14 calendar days within 3 months of applying for an LMIA—advertisement criteria vary slightly in the province of Quebec.

 

The Seasonal Agricultural Workers Program (SAWP)

The SAWP operates based on bilateral agreements between Canada and participating countries. Under these agreements, foreign governments have the responsibility of selecting, assessing, and recruiting temporary foreign workers to fill labour Canada’s labour shortage in the agricultural sector.  The participating countries under this program are as follows: Mexico, Anguilla, Antigua and Barbuda, Barbados, Dominica, Grenada, Jamaica, Montserrat, St. Kitts-Nevis, St. Lucia, St. Vincent and the Grenadines, Trinidad and Tobago.

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Refusal of an LMIA Application

ESDC may refuse an application where employers regularly offer services in the sex industry or they are on IRCC’s list for, for instance, having been found non-compliant due to a compliance review or inspection, or where there is a default of payment of an administrative monetary penalty. They may also refuse to issue same for: certain positions in accommodation and food services and retail trade sectors; low wage positions offered above the cap placed on the proportion of low-wage temporary worker that are permitted; offering a caregiver job with a live-in requirement; having a previous LMIA application revoked within the past 2 years for providing false, misleading, or inaccurate information; and for most positions in Alberta.