Refusal to process a Labour Market Impact Assessment application

There are certain conditions that may justify why Employment and Social Development Canada (ESDC) cannot process a Labour Market Impact Assessment (LMIA) application. These conditions include:

Regulatory authority

ESDC does not have the authority to process applications from ineligible employers for the Temporary Foreign Worker Program who:

• regularly offer services in the sex industry (striptease, erotic dance, escort services or erotic massage)
• are on the Immigration, Refugees and Citizenship Canada ineligibility list which includes employers who:
  • have been found non-compliant as result of an employer compliance review
  • have been banned from the Temporary Foreign Worker Program because non-compliance was discovered during an inspection
  • are in default of payment of an administrative monetary penalty

Ministerial instructions

As a result of public policy considerations as determined in Ministerial instructions, ESDC may refuse to process your LMIA application for:

• positions above the cap on the proportion of low-wage positions
• low-wage positions in census metropolitan areas (CMA) with an unemployment rate of 6% or higher
• in-home caregiver positions where there is a live-in requirement
• any position if you have had a LMIA revoked in the past 2 years
• from September 3, 2024, to March 3, 2025, certain low-wage positions in the economic region of Montréal

Positions above the cap on the proportion of low-wage positions

Low-wage positions above the 10% cap

Your LMIA application won’t be processed if you’re above the 10% cap on the proportion of low-wage TFWs at the same work location.

Low-wage positions above the 20% cap

For the sectors, subsectors and occupations below, your LMIA application won’t be processed if you're above the 20% cap on the proportion of low-wage TFWs at the same work location, in the following:

• NAICS 23 – Positions in construction
• NAICS 311 – Positions in food manufacturing
• NAICS 622 – Positions in hospitals
• NAICS 623 – Positions in nursing and residential care facilities
• NAICS 61 – Educational services and NAICS 62 - Healthcare and social assistance – Specific positions in caregiving under:
  • NOC 31301 – Registered nurse or registered psychiatric nurse
  • NOC 32101 – Licensed practical nurse
  • NOC 44100 – Home childcare providers
  • NOC 44101 – Attendant for persons with disabilities, home support worker, live-in caregiver, personal care attendant
  • this exemption applies to all in-home caregivers; ESDC and IRCC are evaluating the impact of the inclusion in future measures

Low-wage positions in CMAs with an unemployment rate of 6% or higher

Certain LMIA applications submitted as of September 26, 2024 won't be processed. Those with:

• a wage below the provincial or territorial median hourly wage, and
• a work location in a CMA with an unemployment rate of 6% or higher at the time of LMIA submission

Applications exempted from the refusal to process measure

Applications submitted to fill certain occupations in the following sectors and subsectors will continue to be eligible for processing:

• occupations under primary agriculture
• NAICS 23 – Positions in construction
• NAICS 311 – Positions in food manufacturing
• NAICS 622 – Positions in hospitals
• NAICS 623 – Positions in nursing and residential care facilities
• NAICS 61 – Educational services and NAICS 62 – Healthcare and social assistance - Specific positions in caregiving under:
  • NOC 31301 – Registered nurse or registered psychiatric nurse
  • NOC 32101 – Licensed practical nurse
  • NOC 44100 – Home childcare providers
  • NOC 44101 – Attendant for persons with disabilities, home support worker, live-in caregiver, personal care attendant
  • this exemption applies to all in-home caregivers; ESDC and IRCC are evaluating the impact of the inclusion in future measures
• positions in support of permanent residency only (no application for work permit)

The occupation classification code is determined by the National Occupational Classification (NOC).

The classification code for the sectors is determined by the North American Industry Classification System (NAICS) Canada.

How to determine the current unemployment rate

If your LMIA application includes positions with different work locations, you must determine the unemployment rate for each location. If any of the work locations falls within a CMA with an unemployment rate of 6% or higher, your application may not be processed.

1. Enter the complete postal code at Census of population
2. On the results page, under the third geographic level, your "Census metropolitan area" or "Census agglomeration" will be listed. If the result is:
   • Census agglomeration: Your LMIA application will be processed
   • Census metropolitan area: Find the unemployment rate of your CMA by referring to the table below. If the unemployment rate is 6% or higher, your application may not be processed

If no information appears for the searched postal code, your LMIA application will be processed.

Table: Unemployment rates by CMA and period

Census metropolitan area	Unemployment rate (%) as of September 26, 2024	Unemployment rate (%) for October to December 2024 period
St. John's, Newfoundland and Labrador (map)	7.2	To be announced
Halifax, Nova Scotia (map)	6.1	To be announced
Moncton, New Brunswick (map)	5.8	To be announced
Saint John, New Brunswick (map)	6.8	To be announced
Saguenay, Quebec (map)	3.6	To be announced
Québec, Quebec (map)	3.9	To be announced
Sherbrooke, Quebec (map)	5.3	To be announced
Trois-Rivières, Quebec (map)	6.5	To be announced
Montréal, Quebec (map)	7.3	To be announced
Ottawa-Gatineau, Ontario/Quebec (map)	7.1	To be announced
Ottawa-Gatineau, Quebec part, Ontario/Quebec (map)	6.9	To be announced
Ottawa-Gatineau, Ontario part, Ontario/Quebec (map)	7.1	To be announced
Kingston, Ontario (map)	6.6	To be announced
Belleville, Ontario (map)	5.9	To be announced
Peterborough, Ontario (map)	5.6	To be announced
Oshawa, Ontario (map)	8.5	To be announced
Toronto, Ontario (map)	8.6	To be announced
Hamilton, Ontario (map)	7.4	To be announced
St. Catharines-Niagara, Ontario (map)	7.5	To be announced
Kitchener-Cambridge-Waterloo, Ontario (map)	7.6	To be announced
Brantford, Ontario (map)	6.3	To be announced
Guelph, Ontario (map)	5.3	To be announced
London, Ontario (map)	7.5	To be announced
Windsor, Ontario (map)	9.8	To be announced
Barrie, Ontario (map)	6.2	To be announced
Greater Sudbury, Ontario (map)	6.2	To be announced
Thunder Bay, Ontario (map)	3.8	To be announced
Winnipeg, Manitoba (map)	6.3	To be announced
Regina, Saskatchewan (map)	6.8	To be announced
Saskatoon, Saskatchewan (map)	5.5	To be announced
Lethbridge, Alberta (map)	5.1	To be announced
Calgary, Alberta (map)	7.6	To be announced
Edmonton, Alberta (map)	8.5	To be announced
Kelowna, British Columbia (map)	5.2	To be announced
Abbotsford-Mission, British Columbia (map)	6.7	To be announced
Vancouver, British Columbia (map)	6.2	To be announced
Victoria, British Columbia (map)	3.5	To be announced

• Last updated: September 26, 2024
• The unemployment rates are updated every quarter of the fiscal year:
  • April to June
  • July to September
  • October to December
  • January to March
• There may be a delay in publishing new rates.
• Source: Statistics Canada, Labour Force Survey

In-home caregiver positions with live-in requirements

In-home caregiver positions, where there is a live-in requirement, that:

• are classified under the NAICS as a Private household (NAICS 814)
• are classified under the NOC codes 31301, 32101, 44100 or 44101
• have been advertised and indicated on the LMIA application as being sought to fill positions, where there is a live-in requirement

Exceptions to this refusal to process for in-home caregiver positions

High medical needs clients

If you are seeking to hire an in-home caregiver with a mandatory live-in requirement for high medical needs clients (for example, people with disabilities, seniors, individuals with chronic or terminal illnesses), you must submit either:

• a physician’s note certifying both the medical condition and the need for live-in care
• Schedule H – Medical disability, chronic or terminal illness certificate (EMP5600)

Exceptional circumstances to in-home caregiver positions

You must submit a written rationale for possible exemption for exceptional circumstances as part of the Housing section of the LMIA application form. The rationale must include:

• a clear explanation of why live-in care is required
• how frequently the situation necessitating live-in care occurs
• to what degree you can influence this frequency
• a description of what other options were explored in order to meet the need for care and why they were deemed not viable
• how you will ensure fair working conditions for the in-home caregiver, despite the live-in requirement

Previous revocation

ESDC may refuse to process your LMIA application for any position if you have had an application revoked in the past 2 years for having provided false, misleading or inaccurate information.

Temporary refusal to process LMIA applications for low-wage positions in Montréal

For more information, including the municipalities located in the economic region of Montréal, consult Hiring in the province of Quebec.

Processing fee

You won’t be charged the processing fee if ESDC had to refuse to process your LMIA application or if you’re an ineligible employer. In addition, a letter will be sent to you with the reason why your application was not processed.

 

Info Source : https://www.canada.ca/en/employment-social-development/services/foreign-workers/refusal.html 

Manan Gupta is a Regulated Canadian Immigration Consultant (RCIC - IRB) and the CEO of Skylake Immigration. He is a licensee in good standing of the College of Immigration and Citizenship Consultants (CICC) and a member of the Canadian Association of Professional Immigration Consultants (CAPIC). He frequently appears as a media commentator on CBC, Prime Asia TV, 101.3 FM radio, Global News, Omni TV and others to discuss matters related to Canadian immigration, public safety, transportation amongst others.

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