Addressing labour challenges in agriculture with foreign recruits
February 22, 2023 Author: Scott Bell, MLT Aikins
Friday, February 24, 2023

Section: Taxes

One of the bigger issues facing the agriculture sector is the limited labour pool in Canada. Many employers who are looking for workers from outside of Canada to fill job vacancies will be pleased to hear the federal government is ramping up its immigration efforts.

In November 2022, the Government of Canada announced a plan to welcome more than 1 million newcomers to the country over the next three years. Immigration, Refugees and Citizenship Canada (IRCC) plans to allow 465,000 permanent residents into Canada in 2023 – a number that will rise to 485,000 in 2024 and 500,000 in 2025. The majority of these newcomers (60%) will be economic immigrants looking to fill the estimated 1 million vacant jobs in Canada.

While these new immigration targets will come as welcome news to many in the agriculture sector, the process of bringing skilled workers into the country can be time-consuming and complicated. Here is a brief overview of issues to be aware of if you are looking to hire foreign recruits.

What type of workers are you looking to hire?

Generally speaking, the strategy you use for bringing workers into Canada will depend on the roles you are hiring for and the countries the workers are coming from.

Engineers, engineering techs, IT workers, mechanics and other professionals and credentialed tradespeople are considered skilled workers and may have a quicker route to working in Canada. Assembly line workers and uncredentialed tradespeople are more likely to be considered low-skilled positions and will generally take longer to obtain working status.

The agriculture sector has a number of high-skilled and low-skilled occupations which impact the immigration pathways available. Managers in agriculture, farm supervisors and specialized livestock workers are all examples of high-skilled occupations. General farm workers, harvesting labourers and animal care workers are all considered lower-skilled. It is important to understand the conditions around the target occupation to get a sense of the immigration steps required.

Supporting a work permit for Canada

Most foreign nationals need a work permit to work in Canada.

The majority of work permits, particularly for low-skilled workers, are supported by a Labour Market Impact Assessments (LMIA) under the Temporary Foreign Worker Program (TFWP). This can be a long process that requires specific domestic recruitment efforts and advertising to demonstrate that you cannot find a Canadian citizen or permanent resident to fill a role. With advertising and application processing timelines, securing an LMIA can take three to four months and delay hiring efforts.

The TFWP has an Agriculture Stream for employers in specific commodity sectors that need employees to conduct on-farm primary agriculture activities. These positions must include job duties such as farm machinery operation, animal care or tending to crops. This is not an exhaustive list and other primary farm activities may qualify, so long as they are consistent with National Occupational Classification codes 80020, 80021, 82030, 82031, 84120, 85100, 85101 and 85103. Until June 30, 2023, the requirement to advertise and recruit for qualifying occupations has been waived, allowing for more streamlined access to the LMIA process.

Seasonal agricultural positions may qualify for the Seasonal Agricultural Worker Program (SWAP) under the TFWP. These positions must also be primary agriculture occupations within an applicable commodity sector. Employment candidates under this stream must be citizens of Mexico or a Caribbean country.

For reference, the National Commodity List for both agricultural streams includes the following: apiary products, fruits, vegetables (including the canning/ processing of these products if grown on the farm), mushrooms, flowers, nursery-grown trees (including Christmas trees and greenhouses/nurseries), pedigreed canola seed, seed corn, grains, oil seeds, maple syrup, sod, tobacco, bovine, dairy, duck, horse, mink, poultry, sheep and swine.

In some instances, work permits are LMIA exempt and can be supported without the need for domestic recruitment efforts or the pre-approval of the federal government. Under the International Mobility Program (IMP), an employer can skip the LMIA and apply directly for a work permit. These options are only available where Free Trade Agreements or special programs allow a foreign national quicker access to Canadian employment.

The federal government has stated it will use new features in the Express Entry system to make it easier for workers in the manufacturing, building trades and science, technology, engineering and math sectors to enter Canada. The government will also rely on the various Provincial Nominee Programs to address targeted local labour market needs. Regardless of the immigration pathway you take, a work permit still must be processed. This can take an extended period, as outlined below.

Issues to be aware of

  • Expect the immigration process to be lengthy. The LMIA process can be three to four months, and the online work permit application process could also take months. A work permit for a candidate in India could take up to 42 weeks to process online. Employers may want to focus on recruits from countries with shorter processing windows. Further, employers can focus on candidates from countries that do not require online processing of their work permits once proper supports are in place, such as an LMIA. As an example, citizens of Mexico can travel to Canada and receive their work permits at the port of entry, eliminating online processing times. Knowing which countries can process faster is key to accelerated staffing.
  • Exercise caution when entering into agreements with third-party recruitment firms. These firms can be a good source of workers but can also lead to immigration compliance issues later on. As of September 26, 2022, IRCC has imposed stricter compliance obligations on employers who use third-party recruiters. Employers should have recruitment agreements reviewed and ensure they are fully aware of the work a third-party is doing on their behalf. This must also set out the fees being collected with an assurance the third- party is not collecting recruitment fees from the foreign worker. Employers should also be aware of what work the third-party may be doing for the foreign workers.
  • Many foreign workers who are already in Canada have labour mobility issues due to closed employer-specific work permits. These permits only allow them to work for one employer, normally in one location and in a specific occupation. As of September 2022, an application to renew or change work permit conditions from inside Canada was estimated to take 165 days.
  • In November 2022, IRCC began using the 2021 version of the National Occupation Classification (NOC) system, which will have an impact on the eligibility criteria for various immigration pathways, including Express Entry and the Provincial Nominee Programs. Foreign nationals applying for work permits must now use the 2021 NOC codes. Notably, 16 new occupations have become eligible for Express Entry, including heavy equipment operators.
  • In Western Canada, employers can consider programs such as the B.C. Provincial Nominee Program, the Alberta Advantage Immigration Program, the Saskatchewan Immigrant Nominee Program and the Manitoba Provincial Nominee Program. While each provincial program is different – and some programs are friendlier to employers hiring foreign nationals than others – each can be used for positions in the agriculture sector.

Hiring foreign workers can be a complicated process with the potential for significant delays and compliance issues. A skilled legal team can help make the process easier. If you are looking to hire workers from outside of Canada, the MLT Aikins Immigration team would be pleased to assist you.

This article appears in our 2022 Agriculture & Food Year in Review. Download the free ebook.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.

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