from ABIL Immigration Insider

Service Canada has implemented a new Accelerated Labour Market Opinion (A-LMO) program, which is intended to respond to the needs of eligible employers for timely Labour Market Opinion (LMO) processing. However, this initiative places substantial responsibility on the employer for program compliance, which translates into maintaining records and undergoing compliance reviews similar in nature to a tax audit.

The A-LMO program simplifies the application process for employers but also places a substantial burden on employers by requiring attestations on the application form. An A-LMO application does not exempt employers from criteria assessed in the regular LMO process, including:

• the genuineness of the job offer;
• the wage offered; and
• whether the job offer is likely to fill a labor shortage.

If the employer meets all the eligibility criteria to participate in the A-LMO initiative, Human Resources and Skills Development Canada (HRSDC)/Service Canada will then verify if the employer has agreed to all of the attestations and will issue a positive A-LMO within 10 business days.

Employer A-LMO Eligibility

The A-LMO initiative applies only to higher-skilled positions, such as management, professional, and technical occupations (classified under the National Occupational Classification (NOC) skill type 0, and skill levels A and B), although there are some exemptions to this general rule. To be eligible for this initiative:

• The employer must have been issued at least one positive Labour Market Opinion in the previous two years;
• The employer must have a clean record of compliance with the Temporary Foreign Worker (TFW) Program within the last two years;
• The employer must have agreed to all of the attestations included in the application and consented to participate in a compliance review to ensure that the employer is meeting the terms and conditions set out in the Labour Market Opinion letter;
• The employer must not have been the subject of an investigation, infraction, or serious complaint; and
• The employer must not have any unresolved violations or contraventions under provincial laws governing employment and recruitment.

By consenting, employers agree to allow HRSDC/Service Canada to perform a compliance review of the positive A-LMO or any other positive LMO issued to the employer in the previous two years.

During the review, employers must submit documentation to demonstrate compliance with the terms and conditions of the positive LMO or A-LMO letters and their annexes. Up to 20 percent of positive A-LMOs will be selected for a compliance review. These reviews may be based on random selection, or in response to information received subsequent to the issuance of an A-LMO.

Employer Compliance Review

To be compliant, employers must meet all the terms and conditions set out in the positive A-LMO or LMO letters and their annexes. Compliance includes, but is not limited to, the fact that the:

• employer provided wages, working conditions, and an occupation to the TFW that are substantially the same as those offered in the LMO or A-LMO application;
• employer provided wages and working conditions that are the same as those offered to Canadian citizens and permanent residents in the same occupation and work location;
• employer performed the minimum recruitment efforts required by the program;
• employment of a TFW filled a labor shortage;
• employment of a TFW did not adversely affect the settlement of a labor dispute; and
• employer agrees to abide by the relevant federal/provincial/territorial laws that regulate employment and recruitment.

To demonstrate compliance through a review, employers may be required to submit the following documents indicating that they have abided by the terms of the A-LMO application. As noted above, the compliance process is similar to a tax audit. For example, employers may be asked to furnish some or all of the following information to ensure compliance with Service Canada requirements:

• payroll information for the TFW and potentially for Canadian citizens and permanent residents;
• collective bargaining agreements;
• time sheets;
• job descriptions;
• copies of recruitment advertising;
• proof of no labor dispute;
• copies of the TFW's work permit; and
• proof of registration with provincial/territorial workplace safety, where applicable.

Employers should maintain all of the above information and employment records for at least six years.

Non-compliance and/or failure to provide the requested documentation will result in various Service Canada penalties in addition to possible investigations for misrepresentation and non-compliance under Canada's Immigration and Refugee Protection Act.

By consenting to the terms and conditions set out in the A-LMO application, employers agree to allow HRSDC/Service Canada to perform a compliance review of the positive A-LMO or any other positive LMO issued.

by Julie Pearl, ABIL Lawyer
Pearl Law Group Global Immigration NewsFlash

Service Canada announces changes to its LMO Program.

Effective April 1, 2012, Service Canada will allow LMO applications to be submitted online and most excitingly, offer an Accelerated LMO Process (ALMO). The online service will significantly cut down on paperwork and the ALMO will dramatically decrease the processing times for LMO applications. LMO applications have been taking up to 12 weeks recently, which has been a tremendous burden on companies hoping to bring foreign workers to Canada under the program or extending expiring work permits. Service Canada has promised a 10 day processing time for those companies who meet the following criteria:

• previously had at least one LMO approved within the last two years;
• a clean compliance history with the Temporary Foreign Worker (TFW) Program, and are not currently under audit; and
• not been the subject of an investigation, an infraction, or a serious complaint, and do not have any unresolved violations under provincial laws. Finally, the employer must consent to participate in a subsequent audit process. (Until now, there has been a voluntary compliance program when submitting an LMO).

Companies should take advantage of these changes and check with their immigration provider on how to start submitting applications online and enjoying the accelerated service.