Report highlights shortcomings of Labour Market Impact Assessments
The Canadian Chamber of Commerce is right to highlight the shortcomings of privileging the Labour Market Impact Assessment (LMIA) as part of the Express Entry system, says Toronto immigration lawyer Andrew Carvajal.
The new entry system to most of the federal economic programs, introduced in January 2015, ranks prospective immigrants in a pool using a points system that is weighted heavily in favour of applicants with a job offer, as long as they also have a positive LMIA. Of the maximum 1,200 points available, 600 are awarded for a job offer accompanied by a positive LMIA, which means that a labour shortage has been identified in the field and no qualified Canadian permanent residents or citizens have applied for the position.
A CBC article on the chamber's report suggests the LMIA requirement was embraced by the previous Conservative government as part of a political decision to tighten up Canadian immigration in response to a series of stories alleging abuse of the immigration system.
According to its report, Chamber of Commerce members say the LMIA system is “almost unusable for small employers, especially small businesses,” a sentiment Carvajal recognizes.
"While I find that the need for an LMIA to be competitive in the Express Entry pool has been exaggerated at times, I do agree that the system should offer more of an advantage to people who are already employed in Canada and have a permanent job offer, even if the position is not subject to an LMIA," says Carvajal, a partner with immigration law boutique Desloges Law Group.
“If the issuance of LMIAs fully reflected labour shortages the way that the government thinks they do, then perhaps awarding them such a privileged position under Express Entry would make more sense. However, obtaining one is often a matter of navigating a system full of bureaucratic hurdles and arbitrary requirements,” he says.
“You may have an employer who is really having a hard time finding a qualified person in Canada to do a particular job, but whose application for an LMIA is refused because of an arbitrary technicality about the way they advertised the position. Processing times for LMIAs are also significantly long these days, defeating the purpose of this system being an Express Entry into Canada. Many corporate clients who have attempted these applications on their own simply give up and have to forego the opportunity to retain temporary foreign workers who are already excelling at their jobs,” Carvajal adds.
The chamber's report recommends that the Express Entry points system be reworked to award points to applicants with job offers, without requiring a LMIA to validate it.
Another problem the chamber identifies with the points system concerns the scores awarded for the age of the applicant. Those between the ages of 20 and 29 get the maximum 100 points, with scores sliding gradually down from there, until the age of 45, when zero points are awarded. That bias towards youth undervalues “the mid-career executive with substantial work experience,” according to the chamber, which recommends extra points for older individuals with executive experience.
“I have clients who have excellent education credentials, perfect English skills and even Canadian work experience, including a full-time job offer,” Carvajal tells AdvocateDaily.com. “However, they are short of the necessary points to get an invitation to apply for permanent residence because of their age.”
The report offers 20 recommendations it says will put the system back on track, and help Canada “fully realize its economic prosperity,” including:
- Awarding extra points for permanent job offers for employees who have been working for the employer for several years. Alternately, IRCC could devise a job-screening application similar to the one used under the Ontario Immigrant Nominee Program that is not as complex as the LMIA process;
- Training Service Canada employees who assess LMIA applications on the dynamics of certain industries;
- Issuing transparent guidelines and criteria regarding the processing of LMIA applications; and
- Awarding higher Express Entry points for international students who have completed post-secondary studies in Canada.
Carvajal says that since Express Entry’s rules are mainly prescribed by ministerial instructions and guidelines, rather than legislation, the federal government can easily make amendments to the points system if it decides they are needed.
“As a result, I am hopeful that the system can be improved based on what we have learned in 2015, including much of what is discussed in the Canadian Chamber of Commerce’s report,” he says.