Processing Fee

 

Employers must pay $1,000 for each position requested (e.g. $1,000 x number of positions = total payment) to cover the cost of processing a Labour Market Impact Assessment (LMIA) application.

 

• The processing fee payment (in Canadian dollars) can be made by:

 

• certified cheque (payable to the Receiver General for Canada)

• money order (postal or bank)

• Visa

• MasterCard

• American Express

 

• There will be no refund in the event of a negative LMIA, or if the application is withdrawn or cancelled by the employer since the fee covers the assessment process and not the outcome.

• Employers requesting to have their LMIA application reconsidered, as a result of a negative LMIA, must submit a new application and processing fee for each position.

• Refunds will only be available if a fee was collected in error (e.g. an incorrect fee amount was processed).

 

Employers must be aware that Employment and Social Development Canada (ESDC), has a policy that prohibits employers and third-party representatives from recovering the LMIA processing fee from TFWs.

Language Restriction

 

A distinct language assessment factor has been introduced as subsection 203 (1.01) of the Immigration and Refugee Protection Regulations (IRPR). As a result, English and French are the only languages that can be identified as a job requirement both in LMIAapplications and in job advertisements by employers, unless they can demonstrate that another language is essential for the job.

 

Language Proficiency

 

Employers must ensure that the caregiver being hired speaks, reads and understands at least one of Canada's official languages (English or French). Caregivers must have a level of fluency that enables them to communicate effectively and independently in an unsupervised setting.

 

Education, Training or Experience

 

Employers are responsible for ensuring that the TFWs being hired have all the training, qualifications and experience required to successfully and safely perform the job duties of the position for which they are hired. TFWs being hired for:

 

• lower-skilled occupations may require a certain amount of experience, short work demonstrations, on-the-job training, or no formal educational requirements; and

• higher-skilled occupations may require a post-secondary education (e.g. university degree, college diploma).

 

Regulated Occupations

 

Employers hiring a TFW in regulated occupations in Canada must ensure that arrangements are made with the appropriate regulatory body for the certification, registration or licensing of the TFW. A "regulated" occupation is one where a professional or regulatory body has the authority to set entry requirements and standards of practice that lead to a certification, registration or licence (e.g. doctors, nurses, with compulsory certification).

 

Citizenship and Immigration Canada (CIC) will consider whether the TFW has the necessary qualifications to perform the work in Canada before issuing a work permit.

 

CIC has established 2 pathways to permanent residency for caregivers, which are:

 

• Caring for Children; and

• Caring for People with High Medical Needs.

 

Each pathway has its own language and education requirements. For detailed information on these requirements, visit CIC.

 

Multiple Employers

 

Private household employers can partner with another employer (maximum of 2 official employers), to share the responsibilities of hiring an in-home caregiver. For example, 2 adult children may act as employers of a caregiver for an incapacitated parent. In situations that involve multiple employers, only 1 application is required; however both employers must meet all of the program requirements and sign all documents (e.g. Labour Market Impact Assessment (LMIA) application, employment contract, bedroom description form (mandatory in the case of a live-in caregiver).

 

Canada Revenue Agency Business Number

 

Individuals hiring a foreign caregiver are considered employers and must obtain a business number (BN) from the Canada Revenue Agency (CRA) to:

 

• meet the initial registration requirements for advertising on the national Job Bank website or its provincial/territorial counterpart;

• apply for a TFW;

• pay the worker's wage (including vacation pay);

• make deductions from the worker's wage as prescribed by the law and the TFWP; and

• issue pay stubs, statements, remuneration paid (T4) or Records of Employment (ROE).

 

To Obtain a Business Number

 

A BN is a 9-digit business identifier that CRA assigns to an employer located in Canada for tax purposes.

 

Employers can register for a BN by

 

• Internet:
  Use the CRA Business Registration On-line service

• Phone:
  Call the CRA Business Enquires line at 1-800-959-5525 (toll-free). Before calling, be ready to answer all the questions in theRequest for a BN Form (RC1).

• Mail or Fax:
  Complete the Request for a BN Form (RC1) and mail or fax it to the nearest tax services office

 

Employers should know that:

 

• Sole proprietors may use an existing BN to hire a foreign caregiver. However, they must employ the caregiver under a domestic account separate from their other business activities.

• Other employers cannot use an existing company BN, should they have one, to hire a foreign caregiver. They must obtain a separate BN for the specific purpose of hiring a caregiver.

• In instances of multiple employers applying to hire a foreign caregiver, only 1 BN is required.

 

Businesses outside Canada

 

• Employers in the United States can contact the International Tax Service Office at:

1-800-267-5177 ext. 9144 (toll-free)

• Employers from outside Canada and the United States can call collect at:

1-613-940-8497

 

Record of Employment

 

Under the provisions of the Employment Insurance Act, all employers are required to provide a Record of Employment (ROE) when an interruption of earnings occurs for an employee. This requirement applies whether the employee is a Canadian or a foreign worker. The ROE, which indicates the wages paid and the number of weeks the TFW worked, is required by the foreign worker as proof to qualify and apply for permanent residency. TFWs also need the ROE to apply for Employment Insurance benefits.

 

Proof of Individual Requiring Care

 

Employers must provide proof that they or a dependant is in need of care. The documentation that must be submitted along with the application form includes proof of one of the following:

 

• age and parentage for each child under the age of 18 (provide one of the documents listed):

 

• long form birth certificate

• adoption order

• official guardianship, or

• medical doctor's note confirming the pregnancy and the due date

 

• age for each senior, 65 years or older (provide one of the documents listed):

 

• birth certificate

• passport, or

• Old Age Security identification card

 

• disability, chronic or terminal illness for each disabled, chronically or terminally ill person (provide one of the documents listed):

 

• completed Schedule H - Medical Disability, Chronic or Terminal Illness Certificate (EMP5600) form, signed and dated by the physician, or

• physician's note attesting that the patient has a disability, chronic or terminal illness and that he/she requires access to a live-in caregiver

 

Financial Ability

 

Employers must submit a copy of their Notice of Assessment from the CRA showing their financial ability to pay the caregiver’s wages. In exceptional cases where the employer is not required to pay income tax in Canada, copies of paystubs, bank statements, personal work contract or other official documents can be submitted as proof of income.

Note: In cases of multiple employers where the income of 1 employer is not sufficient to meet the financial ability to hire a caregiver, the income of both employers can be combined to meet this requirement. However, the 2 employers must submit copies of their individual Notice of Assessment from CRA.

Employment and Social Development Canada (ESDC)/Service Canada will assess the employer's financial ability by using the Low Income Cut-offs (LICO) produced by Statistics Canada. ESDC/Service Canada is currently using the 2014 LICO rates to assess the employer’s financial ability. Employers can perform their own calculations before submitting their application by using the Financial Ability Calculator.

 

Transportation

 

Employers of low-wage in-home caregivers must always pay for the transportation costs (e.g. plane, train, boat, car, bus) of the caregiver to the work location in Canada. These costs must be paid up-front to ensure that they are not part of any negotiations related to the employment contract. This process helps protect temporary foreign workers, who may be tempted to accept alternative travel arrangements in return for a job offer.

Employers may have a financial agreement with any member of their family to pay for the transportation costs.

 

Transportation costs may include:

 

• transportation from the caregiver's country of current residence to the work location in Canada;

• transportation from the caregiver's current residence in Canada to the new work location;

• gas expenses when the caregiver drives his/her personal car to the new work location;

• return transportation from the caregiver’s current residence in Canada to his or her original country of residence.
   

 

Employers should know that:

 

• The mode of transportation selected must reduce the travel time, expenses and inconvenience to the caregiver.

• Under no circumstances, can an employer recover the transportation costs from the TFW.

 

Transportation costs paid by the employer do not include:

 

• hotels, meals and miscellaneous expenses during the caregiver's travel to the work location;

• transportation or other expenses for vacations or emergency trips.

 

Employers must keep records (e.g. invoices, receipts, copies of flight itineraries, tickets, boarding passes) of all transportation costs paid, for a minimum of 6 years. This information may be required as proof if employers re-apply for a subsequent LMIA or if they are selected for an inspection.

Note: This requirement does not apply to employers of high-wage in-home caregivers.

 

Housing

 

Employers cannot under any circumstance require a caregiver to live in their home. However, if an employer and foreign caregiver decide that a live-in arrangement is the most suitable, for the needs of the person requiring care or to assist the TFW, there are certain criteria that must be met. Specifically, employers must ensure the:

 

• accommodation is being provided in the home of the person receiving care;

• accommodation is private and furnished bedroom;

• bedroom door has a lock and safety bolt on the inside;

• bedroom meets the municipal building requirements and the provincial/territorial health standards; and

• foreign caregiver is not charged room and board for the accommodations, as per the policy, under the TFWP.

 

Employers must submit the completed Schedule J - Employer Supplied

Bedroom Description form (EMP5599) with the application.

 

Employers of low-wage in-home caregivers, who are not providing live-in accommodations, must ensure that suitable and affordable accommodation is available to the TFW. In addition, these employers should be prepared to provide proof (e.g. newspaper ads) that affordable housing is available in the community where the TFW will be employed. Meanwhile, employers of high-wage in-home caregivers do not have to meet this requirement.

Ministerial instruction – Refuse to process

 

The TFWP is refusing to process LMIA applications received on or after December 1, 2014 from employers seeking to hire in-home caregivers exclusively on a live-in basis. To be affected by this refusal to process, 4 criteria must be met.

 

Employers must be:

 

• classified under the North American Industry Classification System (NAICS) as a: 

Private Household (NAICS 814);

• seeking to hire a TFW in a caregiving occupation, classified under the National Occupational Classification (NOC) as:

 

• Registered nurses (NOC 3152)

• Licensed practical nurses (NOC 3233)

• Nurse aides, orderlies and patient service associates (NOC 3413)

• Personal support workers (NOC 6471) or

• Caregivers / Nannies (NOC 6474).

 

• indicating on the LMIA application that they sought to fill the position exclusively on a live-in basis; and

• unable to meet the criteria for an exemption which include:

 

• Exemptions:

 

• Employers seeking to hire in-home caregivers for high medical needs clients (e.g. persons with disabilities, seniors, individuals with chronic or terminal illnesses) must submit along with their LMIA application a:

 

• physician’s note certifying both the medical condition and the need for live-in care; or

• completed Schedule H – Medical Disability, Chronic or Terminal Illness Certificate (EMP5600); and/or

 

• Exceptional circumstances necessitating live-in care. This exemption is intended to be used for truly exceptional circumstances only; rationales based primarily on employer convenience or preference will not be accepted. Employers who wish to apply for an exemption using this criterion must submit a detailed written rationale based on external factors over which they have limited control or influence and which includes:

  This written rationale is to be provided on Schedule G – In-home Caregivers (EMP5601) and must be submitted along with all supporting documentation and the employer’s LMIA application to Service Canada for approval. The supporting documentation must corroborate the employer’s rationale and could include, for example, a letter on company letterhead from the applicant’s employer confirming work requirements, or information on the community where the employer and/or recipient of care live for remote or isolated work locations.

 

• a clear explanation of why live-in care is required;

• how frequently the situation necessitating live-in care occurs;

• to what degree the employer can influence this frequency;

• description of what other options were explored in order to meet the need for care and why they were deemed not viable; and

• how the employer will ensure fair working conditions for the caregiver, despite the live-in requirement.

 

Note:

 

This refusal to process also applies to LMIA applications from employers located in Quebec. These employers are strongly encouraged to submit their application to Service Canada and obtain confirmation that it will be accepted for processing, before proceeding to submit the application to the Ministère de l’Immigration, de la Diversité et de l’Inclusion (MIDI). This will avoid employers unnecessarily paying processing fees to MIDI on applications which Service Canada will not process.

 

Health and Workplace Safety

 

Health Insurance

 

Employers of low-wage in-home caregivers must always pay for the TFW's private health insurance. Coverage must begin from the time the TFW arrives in Canada until the worker is covered by the appropriate provincial/territorial health insurance plan. The waiting period to be eligible for the provincial/territorial health insurance is available on the Ministry of Health Web sites for each province or territory. The private insurance coverage provided to the TFW must be similar to the provincial/territorial health insurance plan.

Note: Under no circumstances, can an employer recover the health insurance costs from the TFW.

 

Workplace Safety

 

Employers of low-wage in-home caregivers must arrange and pay for workplace safety insurance coverage from provincial/territorial workplace safety insurance providers also known as the Workers' Compensation Board. Any coverage obtained by the employer must correspond to the TFWs arrival date in Canada.

 

If requested by ESDC/Service Canada, employers must provide a provincial/territorial workers' compensation clearance letter or other appropriate provincial/territorial documentation.

Note: The requirement for Health Insurance and Workplace Safety does not apply to employers of high-wage in-home caregivers.

 

Employment Contract

 

ALL employers of in-home caregivers must prepare and sign an employment contract. Although employers are not required to use the contract template provided, they must ensure that the contract used, contains all of the mandatory information and clauses.

 

In the event that differences arise between the employer and the TFW, the contract will guide the resolution of disputes. In cases where the dispute cannot be resolved between the two parties, the employer or the TFW may contact the Ministry of Labour in the province/territory where the work is being performed.

ESDC/Service Canada has no authority to intervene in the employer-employee relationship or to enforce the terms and conditions of the contract.

 

Third-party representatives and recruiters

 

Employers do not need to use the services of a third-party representative or recruiter to apply for a foreign worker. However, employers who choose to use the services of one of these individuals or organizations must pay for all of the fees associated with the service and meet all of the applicable requirements.

Representatives assist employers by providing services, such as:

 

• explaining and providing advice on the TFWP;

• completing and submitting the application form and all required documents;

• communicating with ESDC/Service Canada on the employer’s behalf; and

• representing the employer during the application process.

 

Employers who wish to use the services of a representative, paid or unpaid, must complete and submit Schedule A - Appointment of a Third-party Representative. Employers must identify their representative and not simply the firm/organization employing this person.

 

Paid representatives

 

Individuals representing or assisting employers in exchange for compensation (e.g. money, goods or services) must be authorized under section 91 of the Immigration and Refugee Protection Act (IRPA), which means they have to be a member in good standing with:

 

• a Canadian provincial/territorial law society, or a student-at-law under its supervision;

• the Chambre des notaires du Québec;

• the Province of Ontario’s law society as a paralegal; or

• the Immigration Consultants of Canada Regulatory Council (ICCRC).

 

Employers should visit Citizenship and Immigration Canada (CIC) to verify that a specific representative is authorized to represent them or provide immigration advice.

 

Unpaid representatives

 

Individuals representing employers for free (e.g. do not collect fees or other forms of compensation) are not subject to any restrictions under the IRPA.

 

These individuals are usually family members, non-for-profit or religious organizations that assist employers who may not be able to complete the application process on their own.

 

Recruiters

 

Recruiters can assist employers by providing services such as:

 

• placing job advertisements for the recruitment of foreign workers;

• screening potential employees;

• making travel arrangements; and

• negotiating wages/salaries on behalf of the employer.

•  

Employers, using the services of a paid recruiter to represent them during the LMO application process, must complete the Third-party, Recruiter or Employer Agency Information section of the application form as well as the separate Schedule A - Appointment of a Third-party Representative. The paid recruiter representing the employer must be a member of one of the groups authorized under section 91 of the IRPA.

 

If a paid representative is not authorized under the IRPA, ESDC/Service Canada will continue to process the application, but will communicate with the employer directly. However, a copy of a signed letter stating that the employer is no longer using the services of the original representative will be required before the employer can:

 

• hire another paid authorized representative; or

• work with an unpaid representative.

 

Employers who wish to appoint another representative must also submit a new Schedule A - Appointment of a Third-party Representative.

ESDC/Service Canada:

 

• reserves the right to contact employers directly when further information or documentation is required.

• will not mediate a dispute between an employer and a third-party representative nor communicate complaints to a regulatory body on an employer’s behalf. Employers who wish to file a formal complaint against their representative should contact the appropriate regulatory body (e.g. the provincial law society, the Chambre des notaires du Québec or the ICCR). For additional information on how to file a complaint, visit CIC

 

Valid Power of Attorney

 

In instances where an employer is seeking to hire a foreign caregiver to provide in-home care to another adult (e.g. mother, father, brother, sister, son, daughter, friend), proof is required as part of the LMIA application that the employer has legal authority to make decisions regarding financial and personal care matters on behalf of the recipient of care (i.e. other adult). This proof can be provided in the form of:

 

• a copy of the valid Power of Attorney for financial and personal care decisions; or

• an attestation by a lawyer or any other member in good standing with a law society of a province or a notary who is a member in good standing of the Chambre des notaires du Québec or a paralegal, confirming that the employer has Power of Attorney for financial and personal care decisions on behalf of the recipient of care.