LMIAs for Low-Wage Positions
Many of the low-wage LMIA applications we handle are for employers seeking to hire workers in the foodservice industry. In some circumstances, employers hiring foreign workers to work at their restaurants encounter issues with their application. Today, we’re going to review an example of an issue that a restaurant owner experienced when applying for an LMIA.
The situation:
An employer plans to open a new restaurant that they acquired the business license for under their current active business. The application for the LMIA was made by the current active business. The employer intends to hire a head chef, a cook, and a baker.
The employer offered wages that are higher than the median but lower than the Ontario median level. As such, the application indicated the positions were low wage. In the job advertisements, the employer listed the minimum experience required as 5 years.
The problem:
The Service Canada officer refused to process the application for two reasons:
The restaurant is not yet in operation. The employer can only submit an LMIA after the restaurant has begun operating.
The employer requirement of 5 years of job experience is too high for the position advertised.
What next?
We find these responses confusing for a couple of reasons.
If an LMIA is submitted to support an individual’s application for permanent residence, the employer must prove that the business has been in operation for at least one year. However, if an LMIA is submitted for a Temporary Foreign Worker (not PR), the employer does not necessarily need to show this. The employer can argue that without foreign workers, they cannot open the restaurant.
The employer must hire experienced workers for a new restaurant for the purpose of making high-quality, authentic food. The restaurant owner can assert that they have the right to make decisions regarding the requirements for work experience.
However...
We should note that it is extremely difficult for a non-existent business to obtain an LMIA for a temporary foreign worker. All employers applying to the Temporary Foreign Worker Program (TFWP) must supply documents along with their LMIA application to demonstrate that their business and the job offer(s) are legitimate.
It would be difficult for a non-existent business to provide the required business legitimacy documents. If the new business is separate from the current active business, the employer is not really demonstrating the viability and activity of the proposed business by submitting the tax documents of the active business.
Employment and Social Development Canada (ESDC) is sceptical of non-existent businesses because applicants could abuse the TFWP to bring foreign workers to Canada without having job opportunities available for them. Further, if the business fails, then the temporary foreign workers are put in a difficult situation.
The solution:
One option for the employer is to reframe the opening of the proposed business as an expansion of the current business.
In addition, the employer could apply for an LMIA for the Head Chef position first in an effort to hire a Temporary Foreign Worker with experience in the relevant cuisine type. The Head Chef would then be able to train Canadian citizens or permanent residents in the positions of cook and baker. This would demonstrate a need for the foreign worker and show how the foreign worker would contribute to the success of Canadian citizens and permanent residents.
In terms of the experience requirements, the employer can determine these independently, however, they must be reasonable and justifiable for the position. The employer cannot arbitrarily set a high bar in the hopes of filtering out candidates who would otherwise be suitable to the position. We always suggest listing the NOC duties for the position as the requirements.
Our Services
Calver and Associates is a leading provider of Canadian Immigration services in Durham Region. We serve clients in Oshawa, Whitby, Ajax, and beyond. Our Registered Canadian Immigration Consultant has over 10 years of experience in Canadian Immigration law and over four years of experience serving those in the Oshawa area.
We can provide assistance with applications for both temporary and permanent residency in Canada. We handle applications for study permits, permanent residency, family class sponsorship, visitor visas, work permits, and Canadian citizenship. We also handle criminal inadmissibility cases by developing remedies for refusal.
