2021 LMIA: Hire Seasonal Agricultural Farm Worker
Replacement or transfer of workers advertisement waiver
Replacements
Employers using the SAWP stream are not required to re-advertise the vacant position when submitting an LMIA application for a replacement worker. This applies only if the position remains in the same Job Bank economic region and the same occupation as the ones stipulated in the previous positive LMIA.
Transfers
Employer’s submitting transfer LMIA applications under the SAWP stream are not required to advertise if:
The employer possesses an initial positive LMIA for the current season and the Job Bank economic region and occupation remain the same as the initial positive LMIA.
or
The transferring employer (employer providing the workers) possesses a valid LMIA and the transfer takes place within the same Job Bank economic region and the occupation remains the same
Recruitment documentation retention
Records of the employers’ efforts must be kept for a minimum of 6 years. This documentation can be requested at any time by ESDC/Service Canada, as the Department has the authority to conduct inspections to verify an employer’s compliance with the conditions in the Immigration and Refugee Protection Regulations (IRPR) (and confirmed in the LMIA letter and annexes) for a period of 6 years, beginning on the first day of the period of employment for which the work permit is issued to the TFW.
5. Apply for a Labour Market Impact Assessment
Employers who want to hire a temporary foreign worker (TFW) under the Seasonal Agricultural Worker Program (SAWP) must submit the Labour Market Impact Assessment (LMIA) application along with all the required supporting documentation to Employment and Skills Development Canada (ESDC)/Service Canada.
In essence, employers are applying for an assessment on the impact that hiring a TFW would have on Canada’s job market. As a result, it is important that employers follow all the necessary steps and submit all of the required documentation.
As part of the biometrics implementation special measures for 2019, your Labour Market Impact Assessment applications for primary agriculture positions can have multiple worker arrival dates. Applications will still need to be for the same position, wage and NOC code.
How to apply
Employers must use this step-by-step checklist to ensure that all the documents required are submitted, otherwise there will be delays in processing the application.
- agree to all of the Requirements of the SAWP
- agree to provide the Wages and working conditions required in the province/territory of employment and for the appropriate commodity, and
- undertake the required Recruitment and advertisement efforts.
Under this Stream employers must complete, sign (where applicable) and submit the following documents:
- LMIA application form (EMP5389)
- proof of business legitimacy
- proof of advertisement, applicable in most cases
- copy of signed off-site housing contract, if applicable
- housing inspection report
Note: Employers cannot informally transfer TFWs from one employer to another or share them between employers. Transferring or sharing TFWs informally contravenes sections 124(1)(c) and 125 of the Immigration and Refugee Protection Act (IRPA) and is punishable by a fine of up to $50,000 and imprisonment.
Employers must send all required documentation to the Service Canada Centre responsible for processing applications in their area. A complete application means that employers have:
- used the latest version of the application form
- filled out all of the fields in all of the necessary forms
- included all of the required documentation
- signed the forms where required
If an application is submitted and it is not complete, Service Canada staff will inform the employer that the application will not be processed. Incomplete applications and supporting documents submitted with the application will not be retained or returned to the employer. As a result, employers are advised to submit copies, not original documents.
6. Next steps
Employment and Skills Development Canada (ESDC)/Service Canada will assess the Labour Market Impact Assessment (LMIA) application submitted by the employer to determine what impact hiring a TFW would have on Canada’s job market. Based on the application and the documents received, the Department will issue a positive or negative LMIA.
Labour Market Impact Assessment process
All LMIA applications go through a systematic assessment process to:
- verify if the employer is:
- eligible to participate in the Temporary Foreign Worker Program (TFWP). The list of ineligible employers appears on the Immigration, Refugees and Citizenship Canada (IRCC) website, and
- using an authorized third-party representative, if applicable
- verify the consistency of the job offer with federal-provincial-territorial agreements
- assess the genuineness of the job offer. The assessment is based on whether the:
- employer is actively engaged in the business related to the job offer
- job offered to the TFW is consistent with the employment needs of the employer
- employer can fulfil the terms and conditions of the job offer
- employer and the third-party representative is compliant with the relevant federal-provincial-territorial employment and recruitment legislation
- assess:
- the impact of hiring a TFW on the labour market including:
- wages and working conditions offered
- occupation in which the TFW will be employed
- employer’s recruitment and advertisement efforts
- benefits to the labour market
- consultations, if any, with the appropriate union, and
- the effect on the settlement of a labour dispute
- previous job offers that an employer has made to a TFW:
- did the employer employ a TFW in the last 2 years, prior to December 31, 2013?
- this is to determine whether the employer provided all TFWs employed by the company with wages, working conditions and employment in an occupation that was substantially the same (STS) as those that were described in the previous offer of employment and confirmed in the LMIA letter and annexes?
- did the employer apply for and receive a positive LMIA on or after December 31, 2013 and employ a TFW in that position?
- this is to determine whether the employer provided all TFWs employed on LMIAs received on or after December 31, 2013, with employment in the same occupation as described in the previous offer of employment (and confirmed in the LMIA letter and annexes) and with substantially the same wages and working conditions – but not less favourable than – those set out in that offer of employment (and confirmed in the LMIA letter and annexes)
- did the employer employ a TFW in the last 2 years, prior to December 31, 2013?
- the impact of hiring a TFW on the labour market including:
ESDC/Service Canada will ensure that the employer has met all the Program Requirements. Once the assessment process is complete, the employer will be notified in writing of the final decision.
