.jpg)
In Canada, a pay raise for a Latino can seriously violate the law.
Many foreign nationals with a Closed Work Permit and a Positive LMIA arrive in Canada with a job and a set salary. Over time, their performance begins to stand out, and the business owner decides to increase their salary or promote them in order to retain them.
Although it seems like a good strategy, in reality, this is a mistake.
Employers cannot freely make changes to remuneration or new job duties, as they are unknowingly breaking the law.
In this blog, I will explain why changes to the Closed Work Permit with a Positive LMIA can cause problems with IRCC and what to do to avoid them.
Read to the end and understand what is allowed and what is not, and why this labor rule exists in Canada.
Improving working conditions in Canada can be more risky than beneficial if you don't know the law.
Many employers and workers believe that a pay raise or promotion is always good news. However, when it comes to a Closed Work Permit with a Positive LMIA, you have to be very cautious, as any change can be interpreted as abreach of the original conditions.
If the IRCC officer or the labor market assessment body, Employment and Social Development Canada (ESDC), detect inconsistencies with the contract that was established at the outset, they will begin to suspect that there has been fraud in the immigration labor system. This leads to penalties for the worker's status and heavy fines for the company, among other problems.
Important: To avoid penalties, you need to be informed about how the Canadian work system operates when it applies to immigrants.
What the company (and the employee) needs to know is what is permitted and what is not, and what the exact limits are for salary and position adjustments.
If the employer wishes to increase the salary, the adjustment must meet at least one of these conditions to be legally valid without further formalities:
What happens if the employer wishes to increase the salary above these percentages?
If the increase exceeds any of the above conditions, the employer must submit a new LMIA application to the government.
Changes in duties or position (NOC) within the job also require applying for a new Positive LMIA.
Important: A new LMIA Positive application is not required if:
Note: Watch the video: "Salary increase in Canada: NOT ALLOWED - LMIA, " which explains in detail why Canada is so strict with these measures and what happens with NAFTA or Francophone Mobility permits.
Canada is receptive to immigrants, but it also protects its community. It is not just about economic growth through the workforce; it is about safeguarding its own human capital.
When an employer decides to hire a foreign national, they must submit a Positive LMIA application; that is, a Labor Market Impact Assessment demonstrating that they have made recruitment efforts in Canada, including posting the job on Job Bank, but no qualified or Canadian candidates applied for the position.
That is why, if an employer decides to reward an outstanding Latino employee with a salary higher than that agreed upon in the job offer, the government interprets this as deception to avoid hiring local workers.
ESDC, through Service Canada, conducts randomcompliance reviews without prior notice and, if it detects a breach, will apply penalties such as:
If there have been changes in the employment situation, both parties (employee and employer) must communicate.
The worker must be aware of the process and the risk to their status, and the employer must take care of their company; therefore, the strategy is to resort to Voluntary Disclosure: a mechanism whereby the employer voluntarily notifies the ESDC of any non-compliance or error committed.
Once ESDC makes a decision, the employer must reapply for an LMIA.
To facilitate this process, at Immiland Law Professional Corporation, we have a tool called "Talk to my employer, " which provides guidance to both parties.
At Immiland Law Professional Corporation, we are CICC-regulated consultants and Canadian lawyers, and we can assess your case to help you manage your new LMIA processes.
If you would like to get a quote our "Talk to My Employer" service, click here or write to info@immilandcanada.com.
Thank you for reading. Don't miss our next blog on how to avoid mistakes in your Express Entry profile.
With love,
Immiland Law Professional Corporation
