LMO Question - URGENT please!

[NewYorker]

Hello All,

One of my friend living in Canada has a situation and need help - your thoughts really appreciated;

My friend is currently Living in Alberta with a work Permit which is due to expire in September - he has also applied for FSW under CEC and their file is already transferred to a visa office in the US.

In the meantime my friend applied to renew the work permit with LMO, however it was rejected because his employer didn't showed that they looked for Canadian worker because they never attached and advertise either Web based or newspaper.

Now his work permit is about to expire in 3 months and with that he will not be able to stay in Canada and his FSW will be rejected as well.

My question is what he can do right now to maintain the work permit status in this little bit of time, can he apply for LMO again and show all the evidence that the advertise was given in the news paper or web - Will HRDC be able to get this approved within this 3 months so they won't have to leave Canada?

The employer want to re-apply, however the time is running out, he will lose both the work permit and FSW if this is not completed before their permit expires. Can they hire a lawyer and if the lawyer can do anything to help?

Please reply with your best advise or experience.

Thanks,

[Leon]

Ok, one thing, you can not apply for FSW under CEC.  Those are two different immigration classes. 

If he applied under CEC, that is as somebody who has been working a skilled job on a temporary work permit for 2 years, him leaving Canada will not affect his application.  You can even apply under CEC up to a year after leaving Canada.  All he'd have to do is advise CIC that he's left Canada and please contact him at another address.

If he applied under FSW category 3 as somebody who has worked in Canada for 12 months, there is again no requirement for him to stay in Canada during the processing of the application.  For that, he would need to have a valid work permit at the time he applied and that's it.  Again, he would just need to inform CIC if he moves so they know where to contact him.

He can absolutely try applying for a new LMO with the proof of advertising and see if it works out this time.  His work permit is still valid so I do believe if he has an application going at the time it expires, he's under pending status until they say no.  He should phone CIC and clarify though.  If he wants to wait in Canada for his FSW or CEC whichever application he did to go through, he can apply to change status to visitor.

[Mermaid3011]

Ok, one thing, you can not apply for FSW under CEC.  Those are two different immigration classes. 

If he applied under CEC, that is as somebody who has been working a skilled job on a temporary work permit for 2 years, him leaving Canada will not affect his application.  You can even apply under CEC up to a year after leaving Canada.  All he'd have to do is advise CIC that he's left Canada and please contact him at another address.

If he applied under FSW category 3 as somebody who has worked in Canada for 12 months, there is again no requirement for him to stay in Canada during the processing of the application.  For that, he would need to have a valid work permit at the time he applied and that's it.  Again, he would just need to inform CIC if he moves so they know where to contact him.

He can absolutely try applying for a new LMO with the proof of advertising and see if it works out this time.  His work permit is still valid so I do believe if he has an application going at the time it expires, he's under pending status until they say no.  He should phone CIC and clarify though.  If he wants to wait in Canada for his FSW or CEC whichever application he did to go through, he can apply to change status to visitor.

Yes Leon is absolutely right!
No need to panic - but need to act and get a thorough application filed!
The employer should have checked HRSDC's homepage before filing the last application.
It's pretty straight forward - the position needs to be offered on the National Job Board for at least 2 weeks. Depending on the NOC classification of the job offer it also has to be advertised in a reagular newspaper or online - for example on workopolis for another 2-3 weeks. The longer the better by the way!

Then they have to show why the Canadians and PR holder who applied for this job don't qualify! This has to be done with sense and cautiousness. Just saying "my temporary foreign worker has been doing the job for 2 years and only he has the necessary qualification" isnt enough. Please see HRSDCs homepage for more details.

This will take approx 3-4 weeks. Then the employer will hand in a new LMO application. While the LMO application is being reviewed by HRSDC, your friend can already hand in his application for a new Work Permit at CPC Vegreville and ask for concurrent processing. He might have to show (or explain in a cover letter) that his employer applied for an LMO and that they will be handing in the LMO as soon as it's processed. The current processing time is around 95 days (3 months plus a bit).

As long as your friend applies for the TWP renewal at least 30 days before his current WP expires he'll have "implied status" until CPC Vegreville is making a decision about the Work Permit renewal.

Some people use these timelines to work in their favour:
1. apply for the LMO as soon as possible and do this properly (waterproof!)
2. hand in your WP renewal application to CPC Vegreville 5-6 weeks before your current visa expires. (Make sure you send it via courier and you have proof about the date of delivery in Vegreville!!)
3. This will buy you about 2 months of implied status until a decision is made.
4. remember not to leave the country while you are on implied status - this will make your efforts redundant as you lose implied status when leaving the country!

Do some reading on the CIC homepage.
Read the Operational bulletins and manuals. You'll find them with the SEARCH function on CIC's homepage

Good luck!

[NewYorker]

Ok, one thing, you can not apply for FSW under CEC.  Those are two different immigration classes. 

If he applied under CEC, that is as somebody who has been working a skilled job on a temporary work permit for 2 years, him leaving Canada will not affect his application.  You can even apply under CEC up to a year after leaving Canada.  All he'd have to do is advise CIC that he's left Canada and please contact him at another address.

If he applied under FSW category 3 as somebody who has worked in Canada for 12 months, there is again no requirement for him to stay in Canada during the processing of the application.  For that, he would need to have a valid work permit at the time he applied and that's it.  Again, he would just need to inform CIC if he moves so they know where to contact him.

He can absolutely try applying for a new LMO with the proof of advertising and see if it works out this time.  His work permit is still valid so I do believe if he has an application going at the time it expires, he's under pending status until they say no.  He should phone CIC and clarify though.  If he wants to wait in Canada for his FSW or CEC whichever application he did to go through, he can apply to change status to visitor.

Thanks for your reply Leon, appreciate your expertise in this. It was my bad, he is PNP I believe but I will confirm it. So according to your reply, he can wait in Canada and not go back to his country as his FSW file is already transferred to one of the post in US. In the meantime if he want to stay working under work permit- Is three months are enough to get his approval and work permit renewed or does it take longer time than this?

Thanks,

[NewYorker]

Mermaid 3011,

Appreciate your detail reply - I will forward this link to my friend to read and act as explained.

Many Thanks!

[Leon]

Thanks for your reply Leon, appreciate your expertise in this. It was my bad, he is PNP I believe but I will confirm it. So according to your reply, he can wait in Canada and not go back to his country as his FSW file is already transferred to one of the post in US. In the meantime if he want to stay working under work permit- Is three months are enough to get his approval and work permit renewed or does it take longer time than this?

Thanks,

Again, PNP and FSW are not the same.  If it was FSW, no problem.  If it's PNP, problem.  Most PNP's require that you stay with the same employer while your file gets processed.  If he is no longer working for that employer and has to go back home, that will be a problem.  He should do everything Mermaid said to try to hold on to his work permit and get his new LMO.  In a worst case scenario if that doesn't work out and he has to return home and loses his PNP application, he can apply for PR again under CEC if he has been in Canada 2 years or more and his occupation is considered skilled.

[NewYorker]

Leon, I myself is a FSW applicant and not in Canada so I really don't have much knowledge of all these abbreviations, I just confirmed with my friend is that he has Arrange Employment from the employer and it is called AEO - so the employer told him that he can work with him if his PR get approved and currently he is on work permit with the same employer. How this will play out, what he can do in this scenario with AEO FSW?

Thanks,

[Leon]

That's why I have many of the common abbreviations in my signature so everybody can see what they are

To get a temporary work permit, you need an LMO.

To use a job offer for immigration from outside Canada, you need an AEO.

I am not sure why he would have an AEO from the employer if he's on a temporary work permit.

Basically, you can apply for PR through PNP, CEC, FSW and some other ways we shall not discuss.

If you apply through PNP on a temporary work permit, you do it with the employers support and have to stay with that employer until you get PR.  If you apply through PNP from outside Canada, you get an AEO and then apply and no need to stay with employer since you are not working for him yet.  If he has an AEO, it is possible that Alberta PNP will accept that to continue his application, even if he can't get another LMO and therefore can't stay with that employer for the duration of his processing.

If you apply through FSW, you need to get 67 points on the self assessment and you need to fit one of the 3 categories.  Category 1 that you have experience in one of the 38 jobs on their list, category 2 that you have a job offer (if you are not in Canada you need an AEO, if you are already in Canada on a temporary work permit, you would just need a letter from the employer stating they offer you a permanent position once you become PR), category 3 is you are in Canada working or studying for 12 months or more at the time you apply.

If you apply through CEC, you need to have worked in Canada in a skilled position for 2 years or more.  If you have left Canada, you still have a year after you leave to apply.  You can also apply through CEC if you do 2 years studies and 1 year work.

[incanada88]

Thank you everybody for your postings.

I've been working in Canada since September 2007.  I applied as FSW on September 2008. My NOC is on the list, in a management position (0), my employer offered me arranged employment (letter saying that I have a permanent position if my application is successful). My application got transferred to a local office in USA for processing at the end of May.

My employer applied for the LMO according to the instructions, after posting my position for three weeks at the job bank.

 They never posted it in another web sites or newspaper saying that they had the two options and they choose the first one only.

My LMO was refused because my employer failed to prove that they try to hire a Canadian for my position and they didn't send receipts for the advertisement.

They are still willing to re-apply for the LMO, so even that the HRSCD website says that in order to be processed you have to post the position on the job bank or use newspaper o recognized websites.

My concern is that the instructions for the FSW application clearly says that if you are applying with arranged employment you need a valid work permit at the time of the application and at the time the visa is issued.  What will it happen if my LMO gets refused again?

[Mermaid3011]

Hi Incanada88!

I think you are mixing something up.

You applied as FSW under the old system. good.
Your case has been transferred to the US office as you fulfill the ministerial requirements of category 2 (arranged employment). Excellent so far.

Now CIC is assessing your application and is granting you points after the points system.

If you read the instructions it says that you will receive 10 points for arranged employment if you are currently working in Canada with a valid work permit and that this work permit has to be valid at the time when your PR is granted.
Or you will get 10 points for arranged employment if you have an HRSDC approved job offer (which would be your AEO) and a job offer letter from your employer saying that he will employ you once you receive the PR.

I have to admit I dont know if they will give you the 10 points or not. I would say they have to give you the points as you fulfill the first requirement now and even if your current visa runs out without a renewal you'd fulfill the last requirement when they issue your PR.

But I am sure that - if you can somehow manage to score 67 points - your PR application is not in jeopardy just because your LMO / WP will not be prolonged in September.

What you definately should do is: talk to your employer and have them maybe hire an immigration lawyer for a proper LMO application. It might be worth the money to have someone help with the wording. Sometimes it's the little things that make a big difference. (my company paid 1000 $ for the LMO and WP application to an immigration lawyer ... which is quite a chunk... but we have reason to believe to get a positive LMO on Monday)

You should also make your employer aware of the option to support you through the Provincial Nominee Program of your province. Even though you have already applied for PR it might help you: as a Provincial Nominee you can get a work permit without the LMO! It might even be quicker than the whole LMO process! Have a look into the provincial programs and do your homework!

good luck!
B.

[kelmolab]

hello mermaid,

I am in a similar situation, my WP is expiring very soon. You specifically mentioned that one has to submit an application for extension at least 30 days from expiration. Is this a strict rule? i have 10 days left!! Thanks!