Learning Moments - Suspension to Process LMIA Applications for Caregivers
This article by Andrew Carvajal is part of the Immigration Education Alliance (IMEDA) weekly column titled "Learning Moments".
Hello fellow practitioners. Today’s column deals with the recent suspension to process LMIA applications for caregivers, as well as its exemptions.
Reader’s question
I have a client who is in Toronto with a valid child caregiver work permit that was issued with the support of an LMIA. Her employment in Canada was terminated but she found a new employer. However, she can’t work for the new employer as he is not listed in the LMIA. While I told her that she may be able to apply under the new caregiver pilot for permanent residence and an occupation-specific work permit, she said that she doesn’t want to do it at this time because she doesn’t have an Educational Credential Assessment (which will take months) and she is unsure whether she will be able to meet the language requirements so soon. She and her employer want to do the LMIA route for now and in about a year she will apply for permanent residence under the new pilot.
I am unclear as to whether the employer can apply for a new LMIA so that she can extend her status and change her work permit. I know Service Canada cancelled the LMIAs for caregivers, but does this apply to everyone?
Answer
Our reader is correct that Labour Market Impact Assessments (LMIAs) for certain caregivers have been significantly restricted as of June 18, 2019. ESDC’s new guidelines instruct officers to refuse to process certain LMIA applications for caregivers if certain conditions are met. We will reproduce those instructions here for ease of reference (emphasis added):[1]
Officers must not process applications for new LMIA-required work permits made by foreign nationals under subparagraph 200(1)(c)(iii) of the Immigration and Refugee Protection Regulations (IRPR) if all of the following criteria apply:
The intended occupation is in National Occupational Classification (NOC) 4411 (excluding foster parents) or 4412 (excluding housekeepers).
The applicant is outside Canada.
The applicant is making an initial work permit application (that is, they do not currently hold a valid work permit).
The applicant is destined to a job location outside Quebec.
The accompanying LMIA application has been received by Employment and Social Development Canada (ESDC) on or after June 18, 2019.
Our reader’s client does not meet all of the above criteria as she is applying from within Canada and she currently holds a valid work permit. As a result, her employer is exempt from the refusal to process instructions and the client can obtain a work permit with a new LMIA under the Temporary Foreign Worker Program.
Although it is unclear how many months of Canadian work experience our reader’s client was able to complete, our reader may also want to discuss the possibility of making a permanent residence application under the Interim Pathway for Caregivers. The Interim Pathway, which was opened for a second time in July this year, will remain open until October 8, 2019. If the caregiver completed 12 months of experience as a caregiver under the LMIA work permit and meets all other requirements, she may be able to apply under this interim program.
One advantage of the Interim Pathway is that the caregiver can submit the application even without the Educational Credential Assessment (ECA) or language test results at hand, as long as the ECA report has been requested and the caregiver has signed up for the exam prior to submitting the application. However, there remains the issue regarding the minimum language skills required for the Interim Pathway, which is a Canadian Language Benchmark level of 5 for all four language skills. If it is questionable that the client will be able to fulfill the language requirements, it may be best to apply under the new pilot later on.
[1] https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/foreign-workers/work-without-permit/changes-work-permits-issued-caregivers/refusal-to-process.html
Andrew Carvajal is a Toronto lawyer and partner at Desloges Law Group specializing in immigration law, administrative law and Small Claims Court litigation.
Twitter: @CarvajalLaw
Email: acarvajal@desloges.ca
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