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In our January 5, 2010 article, we discussed the usual process for getting a work permit for a foreign employee entering Canada: obtaining a Labour Market Opinion (or LMO). The LMO process can be complex, lengthy, and very demanding for employers. Fortunately, several exemptions exist that can provide you with a much faster, simpler process. Let's have a look at the most common of these LMO exemptions.
Intra-company transfersThis exemption is for workers who are being transferred to a Canadian parent, subsidiary, branch or affiliate of their American or other foreign employer. Two types of workers are covered by this exemption: executives/senior managers, and employees who possess specialized knowledge.
Immigration Canada's guidelines define an executive or senior manager as someone who manages the company or an important part of it, usually through middle managers. When there are no employees under their direct supervision, it must be proved that they manage an important function of the company, at a senior level. Middle managers or first-line supervisors do not qualify for this exemption. In order to determine how senior a position is, Immigration Canada will not rely only on the position title. They will rely mostly on the description of the role in the company's organization chart as well as the detailed job description.
An employee-applicant who possesses specialized knowledge must be very familiar with the company's products, services, processes or procedures. The knowledge must be unusual and different from what is usually found in the industry. It can be proprietary or unique to the company, but it is enough for it to be rare. Specialized knowledge does not include knowledge that could be gained by another employee in the short term. An advanced level of knowledge of a particular industry that is not easily gained without extensive experience also qualifies under this category.
In addition, the employee must:
Young Worker ProgramsCanada has signed bilateral agreements with a number of countries, including the U.S.A., in order to facilitate the work permit process for young workers between the ages of 18 and 35. Each agreement has its own specific requirements, but in general, it includes one or more categories that are LMO exempt:
The North American Free Trade Agreement (NAFTA)The NAFTA offers simplified work permit criteria and processing for American and Mexican citizens. The most commonly used NAFTA LMO exemptions are for professionals and intra-company transferees.
This exemption covers approximately 60 specified occupations, such as management consultants, engineers, architects, teachers, nurses or computer analysts. In addition to being a citizen of Mexico or the U.S., candidates must meet the educational and experience requirements for one of these occupations. They must enter Canada to provide pre-arranged professional services, either as an employee of the Canadian company, or as an independent contractor.
The requirements under this category are similar to the general requirements mentioned above for regular intra-company transferees. The key difference is that managerial positions are not restricted to executive or senior managers. The NAFTA exemption also applies to middle management roles.
Processing times and locations:The Canadian Government office that will process a work permit application based on a LMO exemption will vary, depending on the worker's nationality and whether they need an entry visa.
For American citizens or others who do not require a visa, the application can be presented to immigration officers at any Canadian port of entry. A pre-approval process is also available. That process will speed up the issuance of the work permit upon arrival in Canada. A written response is usually received within 10 working days from the date an application is submitted.
When a visa is required, on the other hand, the application must be presented to a Canadian Consulate or Embassy in the worker's country of residence. Processing times can vary from 2 weeks to 3 months (or more when an immigration medical examination is required).
SummaryOne of these or several other LMO exemptions may apply to a specific case. A careful analysis of the context and circumstances of the employee being relocated is recommended. The review should be done at an early stage of preparation. It will help determine if an LMO exemption may apply and is usually very worthwhile.
Remember that LMO exemptions can save you, as a work permit applicant or employer, lots of time, effort and money. Make sure to take advantage of these rules.