Author Sara Espinal Henao, an Immigration Lawyer in our Halifax office, will be speaking on a related panel, Labour Market Impact Assessments Overview and Current Trends, at the upcoming CBA Immigration Law Conference in Ottawa, Ontario on June 2.

By Sara Espinal Henao

It is a well-known fact that Canadian employers across various industries are facing labour shortages. Yet, local recruitment efforts are often insufficient to fill the demand. This is where the Temporary Foreign Worker Program (“TFWP”) and related Labour Market Impact Assessment (“LMIA”) process come in.

In essence, LMIAs determine if the employer’s hiring of a foreign worker for a particular role will result in a positive, neutral, or negative impact on the Canadian labour market. In most cases, the employer is required to include proof of recruitment and advertising for the position to demonstrate that it made best efforts to find a Canadian or permanent resident before offering the job to a foreign worker.

Employment and Social Development Canada (“ESDC”), tasked with reviewing LMIAs, provides detailed guidelines regarding acceptable advertising and recruitment in support of an LMIA application. However, gathering evidence of advertising in compliance with LMIA program requirements is more difficult than it seems. Minor inconsistencies, errors, or omissions in recruitment efforts often lead to refusals. Employers who are faced with an LMIA refusal due to faulty advertising may end up having to deal with the added costs and delays associated with re-advertising, re-submitting, and re-paying for a new LMIA in order to fill their vacancies.

Here are ten tips to avoid a refused LMIA due to insufficient proof of recruitment and advertising:

1. Be familiar with program requirements from the start

Employers should begin by identifying the specific LMIA stream that would apply to their case and rule out the possibility of an exemption from recruitment and advertising requirements based on the offered role or type of LMIA under which they will be applying. If proof of recruitment and advertising are indeed required, employers should become familiar with those specific requirements before preparing and posting their ads.

Most LMIA streams require that employers conduct three different recruitment activities. Unless exempted, they must use the Government of Canada’s Job Bank and must also conduct at least two additional methods of recruitment. The methods must each target the appropriate audience for the role in question. One of these two methods must be national in scope and easily accessed by residents of any province or territory. In the case of low-wage LMIAs, each additional method of advertising must target an underrepresented group.

Having a clear understanding on the applicable program-specific requirements and modeling advertising efforts after these requirements from the start may save employers time in the long run.

2. Match the vacancy to its corresponding NOC code before posting

When drafting an advertisement, employers should make sure the offered salary, main duties, and minimum requirements indicated in their advertisements are consistent with the National Occupational Classification (“NOC”) code that corresponds to the role they are hiring for. Employers must thoroughly review various NOC options and choose the one that fits closest with the position.

The minimum requirements in the job posting can be higher than those listed in the corresponding NOC code, especially for highly specialized or senior vacancies. However, if that is the case, employers must be prepared to provide a good explanation for the higher minimum requirements if asked during the processing of the LMIA.

3. Draft advertisements with sufficient detail

Overly generic advertisements can lead to an endless pool of seemingly “qualified” candidates that do not actually meet an employer’s needs once vetted. Similarly, advertisements that do not provide clear information on the position’s main responsibilities and terms of employment might attract uninformed candidates that do not have an interest in the role once they are interviewed and receive further clarification. As discussed below, employers are required to provide justification in their LMIA for why each Canadian and permanent resident applicant was not suitable for the role. Overly-broad advertisements create more work for the employer by attracting a higher number of unqualified candidates that must be vetted, but also create a higher likelihood of LMIA rejection because it is more difficult to provide justifications for why a candidate was not hired when the advertisement itself lacks specific hiring criteria.

By posting detailed advertisements that provide accurate and clear information about what the job entails and what it requires (i.e. minimum years and types of experience and education to qualify), in addition to meeting the minimum content requirements under the program, employers can minimize the number of ineligible candidates throughout the advertising period and thus reduce the effort needed to vet and rule out unqualified candidates.

4. Use a wage range if applicable

If a salary has not been determined for a particular vacancy, employers can consider posting a wage range in their advertisements. Wage ranges are acceptable for LMIA purposes as long as the low end of the range falls at or above the prevailing wage for the advertised position at the job location. Again, the NOC code must be known to properly identify the prevailing wage.

5. Identify the total number of vacancies in advertisements

When employers have multiple identical positions to fill, it is important they indicate the total number of vacancies available in all advertisements run. The LMIA process allows employers to apply for multiple positions for the same role in the same LMIA, and therefore to rely on the same period of advertising to request multiple positions in the LMIA. Additionally, when employers can identify a Canadian citizen or permanent resident that meets the criteria for the role, but still require one or more temporary foreign workers to fully meet their labour demand, their existing advertising efforts can be salvaged if they clearly indicated the total number of vacancies to be filled.

Bonus tip: Always remember that the LMIA fee of $1,000 is required per position, not per application – if multiple positions are applied for in the same LMIA, the fee has to be multiplied by the number of positions.

6. Ensure Consistency Across Advertisements

Since most LMIA streams require multiple sources of advertising, inconsistencies between ads, especially on key information such as the job’s minimum requirements, location, duties, and offered wage, can be a red flag in an LMIA application. For instance, indicating that a given role requires a certain minimum years of relevant work experience in one ad while providing that work experience is merely “an asset” in another can lead to inconsistent information and a refusal of the LMIA.

Modeling all ads after one original job description and providing identical information in all methods of advertising minimizes the likelihood of an LMIA rejection.

The Job Bank presents a challenge for consistent advertising as it only allows employers to select information from drop-down menus based on the NOC code selected, rather than allowing free entry of text that matches other advertising efforts. It is good practice to add a link in the Job Bank advertisement to one of the other advertisements for the role. This way, Job Bank ad viewers can have access to the full advertisement with its original content. It is also important that employers do not select extra information from the Job Bank drop-down menus if that information is not already included in their other advertisements, and that they attempt to match the information selected as closely as possible to the content of the other advertisements.

7. Diversify advertising methods

Most employers rely exclusively on popular job search engines to post their vacancies with the assumption that the type of candidate that would be interested in the posting uses those services. However, depending on the job searcher’s background, these commonly used sites might fail in targeting relevant audiences. Multiple websites of the same type will only be considered by ESDC as one additional method of recruitment, rather than unique recruitment efforts, for the purpose of an LMIA. For this reason, “scraper” websites that simply pull advertisements from other sites will typically not be considered a unique recruitment effort.

Employers should consider diversifying methods of advertising to include their own website, job fairs, postings in educational or vocational institutions, or postings in professional association websites, among others. By doing this, employers can demonstrate a genuine attempt at making the job opportunity visible and accessible to a target demographic that is likely to be interested in the job and meet its minimum requirements.

8. Always post back up ads

Although LMIA applications often require no more than three total sources of advertisement, including the Job Bank, posting the vacancy in a couple of additional sources is good practice. That way, if one source of recruitment is found unacceptable, the LMIA application may still be processed with the remaining ads.

9. Collect proof of advertising every week during the advertising period

When proof of recruitment and advertising are required for a given LMIA application, supporting documentation must show that the advertisements were posted for a minimum of four consecutive weeks. The LMIA can be frustrated by even a single day gap in the four-week period where the employer is unable to prove the advertisement was running. Failure to provide evidence of advertising for the minimum period required without gaps can lead to a refusal, even when rules are otherwise adhered closely.

Waiting until the end of the advertising period to collect the required proof can be risky if the method of advertising does not clearly show the number of days the posting has been running. For example, some websites will “refresh” advertisements, which will cause the original post date to change to the refresh date, and as a result the four-week period cannot be established unless screenshots were consistently taken throughout the process.

In order to avoid supporting documentation issues down the line, it is best to take weekly, timestamped screenshots of all posts throughout the advertising period. This allows employers to collect the proof they need and extend job postings as needed before their expiry to avoid gaps.

10. Complete a Recruitment Summary Outline throughout the advertising period

Lastly, although collecting valid proof of advertising goes a long way towards demonstrating that an employer has endeavored to fill their labour demand locally, the LMIA process also requires employers to detail the number of Canadian or permanent resident candidates that applied for the position and the reasons why they were not hired. In order to ensure employers are gathering the recruitment information required, it is best to properly screen Canadian and PR candidates throughout the advertising period, rather than waiting until the end of the four weeks. A detailed recruitment summary outline updated on a weekly basis provides a useful way to record recruitment outcomes in a manner that is compliant with the LMIA process. Justifications as to why each Canadian or permanent resident candidate was not hired should be noted and these reasons should tie directly back to the advertised role requirements. Employers will run into issues if they try to exclude an applicant for lacking skills or experience that was not clearly specified in the recruitment methods.

This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact the authors.

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