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52 J U N E / J U L Y 2 0 1 8 w w w . C A N A D I A N L a w y e r m a g . c o m dates are not sufficient. They need to show they will be paying and providing working conditions up to Canadian standards. Completing an LMI assessment can take between three and five months. But the process can be even more time- consuming, according to David Nurse, counsel at McInnes Cooper in Hali- fax. He says he recently had a case in Alberta where the ESDC official took 183 days to look at the application. "Think about the contradiction there. The employer has to demonstrate that there's a pressing need to hire a foreign worker . . . but the application isn't looked at for six months," he says. In spring 2017, the Alberta gov- ernment, led by Premier Rachel Not- ley's NDP, responded to the economic downturn in the province with an ini- tiative intended to curb the use of tem- porary foreign workers. "That to me is kind of a worrying trend that the federal government and the provinces work together to make the system more and more complex depending on the political will [of ] the provincial government of the day," Nurse says. ESDC has a list of 31 occupations for which it will refuse to process LMI assessments in the province of Alberta. Most of the excluded positions are in the oil sector. The federal government recently ini- tiated the Global Skills Strategy, which was meant to speed up processing times for employers seeking specific kinds of workers. For those who qualify for this program, and are not exempt from the LMI assessment process, employers must complete a labour market benefits plan to demonstrate that, depending on the type of job being hired for, the employer either creates jobs for Cana- dians or invests in skills and training of Canadians and permanent residents of Canada. With the Global Skills Strategy, the government promises a two-week turnaround on the LMI assessment. "A lot of the issues that you find in the regular LMIA process have been addressed in this pilot program," says Naumaan Hameed, partner and Cana- dian immigration practice leader at KPMG. "What I value with the Canadian system is there's an open dialogue in the ability to recognize opportunities to change and bring value to employers, while not sacrificing the integrity of the program," he says. While Ramo and Bart see discretion and diversity among those administering labour market impact opinions, Nurse sees strict, by-the-book inflexibility. "The criteria for the program are pre- sented in a very, very, very rigid way and administered in a very rigid way," he says. "It's very frustrating. My advice to clients is if you can avoid the temporary foreign worker program and the LMIA, then you should do so." The temporary foreign worker pro- gram is one of several federal and provin- cial business immigration programs. For those exempt from the LMI assessment process, there is the international mobility program. These exemptions are provided for by ss. 204 to 208 of the Immigration and Refugee Protection Regulations and apply to occupations specified in international agreements such as the North American Free Trade Agreement and other trade deals, those considered a "significant ben- efit" to Canadian interests, those with "no other means of support" like refugees and those exempt for "humanitarian reasons," such as "destitute students." Before the Economic Action Plan 2014 Act eliminated them, Canada also had the Immigrant Investor and Entrepreneur programs. These programs allowed peo- ple to settle in Canada if they established and maintained a business and made a financial deposit with the government, which they would eventually get back without interest. "The public policy research doesn't support that kind of program and the rea- son why the government's have generally been moving away from that is that they find that those programs have relatively low benefit to Canadians," says Paul Hesse, partner at Pitblado Law in Winnipeg. These passive programs, where an amount is paid, net worth is shown and the candidate has a path to permanent residence without actively starting and running a business in Canada, are now only replicated in Quebec, with the Que- bec Immigrant Investment Program. Robin Seligman of Seligman Law in Toronto says the Quebec program is flawed as many who use it do not stay in Quebec. "Unfortunately, the money does not fil- ter back into the economy and the people who use that program don't stay in Que- bec," she says. Seligman would like to see a new pas- sive investor program instituted federally, where applicants give a gift to the federal government that they then can put toward health care, infrastructure or other gov- ernment services. "I would allow no commission on that. No intermediaries, no commission. Just a straight-up program for people that have a business background, they have the net worth and they're willing to make a pay- ment," she says. Canada's self-employed immigrant L E G A L R E P O RT \ I M M I G R AT I O N

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