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Labour Market Opinions, Work Permits

Why does government make immigrants guess what they need?

When an employer seeks to hire a foreign worker, the employer must often apply to the Government of Canada to obtain a positive Labour Market Opinion (“LMO”) – a document in which the government states that it is convinced that no Canadians or permanent residents are willing or able to do the job.

In most cases, employers who obtain positive LMOs simply give these documents to their prospective employees and wait until the work permit is issued. In most cases, this happens without incident.

However, in this case: Grusas v. Canada (Citizenship and Immigration), a prospective employee’s work permit application was denied because she did not meet the work experience requirements for the job. I had the opportunity to comment on this in Aikins’ newsletter yesterday. My article is here: http://www.aikins.com/publications/article/does_your_labour_market_opinion_disqualify_your_chosen_candidate_for_a_job

Clearly, anyone who wants a job should have to prove that he or she meet the job’s qualifications. What disturbed me about this case is that the prospective employee may not have known what she needed to put in the immigration application because what was needed was not listed in the government’s LMO.

In this case, the LMO indicated that a prospective employee had to meet certain educational and language requirements. The prospective employee submitted the evidence needed for this and this evidence was accepted.

What the employee did not put in was evidence that she had 3 years of work experience. Although this work experience requirement was not in the text of the approved LMO, it was in the application the employer submitted. It should be noted that Service Canada considers these LMO applications to be the employer’s application and prospective employees are not given access to these.

In my mind, this whole thing could have been avoided if Service Canada simply added a line in its letter that stated “minimum 3 years of experience for the job is required”. The question is: why was this not done?

I have advised many clients on these issues in the past and have always told them that their prospective employee must submit evidence that they meet all of the requirements  set out in the application, not just the requirements in the approval letter. If the requirements in the approval letter are different, these will be the ones that govern the situation.

However, if you are a business or prospective employee, how would you know that you have to put in information that the government does not even set out in their letter?

If a government office tells you that you should submit Document A and Document B in your application, why would you think that you also need to submit Document C and Document D. Would it really hurt Service Canada to be a bit clearer? After all, their approvals usually number 3 or more pages. One more line would not hurt.

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About Reis Pagtakhan

Reis Pagtakhan is an immigration law partner with MLT Aikins LLP. His extensive experience includes assisting businesses obtain temporary entry to Canada and permanent residency for their executives, employees and contractors from all over the world. Reis has lectured on and written papers on immigration law for the Law Society of Manitoba, the Manitoba Bar Association, the Human Resources Management Association of Manitoba, the Canadian Corporate Counsel Association, and the Community Legal Education Association of Manitoba. He has presented position papers before the Minister of Citizenship and Immigration, Immigration Department officials and Manitoba Labour and Immigration. He has written articles on immigration for the CBC, the Winnipeg Free Press, trade, industry and ethnic publications.

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