Sometimes immigration files go off the rails, and that is going to be the focus of my next few posts.
LMIAs and the Nova Scotia Nominee Program: the shelf-life of LMIAs for PNP applicants
“Packaged on” and “Best before” are 2 different things, right? Wrong.
One of our Nova Scotia Provincial Nominee Skilled Worker (PNP) applicants was refused for lack of recruitment because his Labour Market Impact Assessment (LMIA) was “expired”. Even though he had a valid LMIA-based work permit when he applied.
The refusal was puzzling to us. We have always understood that people with valid LMIA-based work permits qualified for this stream, and that evidence of recruitment wasn’t necessary. The forms even say this explicitly:
If the employer has received a positive LMIA opinion from Employment and Social Development Canada (Service Canada) for this position, attach a copy of the LMIA in which the applicant is named. No other recruitment documentation is required. [page 6]
This makes sense. LMIAs are usually valid for about 2 years and who better than Service Canada to assess and issue an opinion (LMIA) on whether the worker’s skills are needed? And once an employer has the LMIA in-hand, why on earth would they re-advertise for a job they just filled? Anyone who is familiar with the LMIA process these days knows how difficult they are to get – in the last 3 years this option has gone from the “go-to” route for employers to the absolute last resort. So it defies logic that employers would have to re-recruit if their worker (and prospective permanent resident) has a valid LMIA and work permit.
But in our case, the file was refused because the Nova Scotia Office of Immigration (NSOI) deemed the LMIA “expired” 6 months after it was issued. The LMIA was therefore too stale to support an application under the PNP program. This is despite the “validity” period of the LMIA, which was the usual 2 years (i.e. the same as the work permit).
(Ok, maybe only crazy to immigration lawyers, and that one client who now understands the difference between expiry, duration and validity when it comes to LMIAs.)
The cause of this headstand-logic is a single sentence in the Skilled Worker manual, which is appended to the passage I quoted above:
The LMIA’s opinion expiry date must be later than the date of application to the Nova Scotia Office of Immigration (NSOI).
Expiry, duration, and validity: the distinction between these terms is simple but nuanced. Once an LMIA is issued, a worker has 6 months to apply for a work permit. The end of that 6 months is the “expiry date”. However, work permits can take anywhere from 1 day to 9 months to get, so rather than prejudice people who are from certain visa-required countries with slow processing times, once the permit is issued it will be for the two-year duration stated on the original LMIA. Otherwise, workers from a country such as Vietnam would arrive with work permits that expire in a week. That two years (or one or five) is the validity period.
We are questioning the decision and hoping the province reopens the matter based on the fact that (1) Service Canada is clear about this distinction – a LMIA is still valid after the 6-month expiry date as long as the work permit application has been made; and (2) we have got in the past -and continue to get – nominations for people in the exact same situation – towards the end of their work permit (and LMIA validity period).
In response, the NSOI has told us that it considers LMIAs that are still valid – but close to the end of their duration – to be expired. Back to the grocery metaphor: you know that carton of milk you bought that expires in 2 weeks? It’s no good, so chuck it now.
What the NSOI cannot tell us is when, during that 2-year period, they consider the opinion to have gone sour. Apparently the decision as to when an LMIA has turned is up to whichever officer happens to be working on that file.
At this point, we are left advising clients that depending on the age of their valid work permit, they may or may not have access to the NS programs.
It will be a shame if the province doesn’t reconsider its refusal in this case. In the meantime, we definitely aren’t tossing anything out.
UPDATE: in the end, the province agreed with us that the validity period of the LMIA and work permit is the critical date, not the 6-month (or some other arbitrary) expiry period. Hooray for the province!