LMIA Insights from Service Canada
The LMIA: seemingly the bane of every immigration lawyer’s existence. There is no doubt that in the realm of immigration law it is unlike any other application. Officers routinely ignore designated representatives and communicate directly with clients, the manuals they rely on are not readily available, and their reasons when an application is refused so general they reveal nothing about why the application was actually refused. Because officers are applying general legislation and regulation using ever-changing and opaque guidelines, the best knowledge of how things actually work comes from experience. This blog post shares some recent insights from a conversation with a Service Canada officer.
Median wage isn’t really the median
Considering the wage scale contains “low”, “median”, and “high” wages for a given occupation, employers (and lawyers) may be forgiven for thinking that a median wage is more than an entry level wage. Not so. According to Service Canada, the median wage is the absolute minimum that must be offered to qualify for the LMIA. If in their job ad, employers require skills that are in addition to the labels found under the relevant NOC code, or require a few years of work experience, then the wage offered should be above the median wage. If not, then Service Canada believes qualified Canadians are priced out of the market. Their logic is, even if you advertise at the median wage, and even if you legitimately cannot find any employees, but if you required a few years of experience, then qualified Canadians saw the ad, but they did not apply because the wage offered was too low.
Being a start-up not necessarily detrimental
One of the requirements for an incorporated business are T2 Schedule 100 and Schedule 125 tax forms. Typically, businesses do not have these until after their first tax filing. Employers should not be dissuaded from filing otherwise complete LMIA applications without these forms, as long as the equivalent information (balance sheet and income statement information) is provided. To avoid a returned application for being “incomplete” , applicants should clearly indicate in a cover letter that they acknowledge the T2 form requirement, that they do not have it, and that they are providing an alternative. New companies should also be able to demonstrate that they have the financial means to sustain their operations (signed contracts, orders, etc., and/or cash reserves) and to pay the foreign worker for the duration requested.
Stay tuned for the results of my ATIP request of the latest manuals, guidelines and similar internal documents.