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Canadian Immigration Lawyers
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H1-B Visas

For Canadians who do not qualify under one of the occupational categories for the TN visa under NAFTA, the H1B (also known as the H1B1) visa is an option for professional and specialty occupations. The H1B visa is also available to other non-Americans who are seeking work visas for professional and specialty occupations.

In essence, the requirements for this visa is that the employee must have the minimum of a bachelor’s degree or equivalent or education and experience and the position itself of a certain level of complexity and sophistication so that the candidate filling the position must possess the minimum of a Bachelor’s degree or equivalent. The “professional” level of a position may be determined by evidence that:

  • the requirement of a degree for the position is common in the industry;
  • the employer normally requires a degree or its equivalent for the position; and/or
  • the nature of the job duties is so specialized and complex that the knowledge required to perform the duties is usually associated with a bachelor degree or higher degree.

While certain occupations have been long recognized by the US CIS as members of the “professions”, for many positions, it is not sufficient for the employer to simply state that the employer is SEEKING a candidate with a bachelor’s degree or equivalent. Actual evidence attesting to the complexity level of the position—through industry surveys, employer hiring history, case law, etc., must be submitted.

H1B visa applications are adjudicated at the US CIS Service Centers and can take at least 60 – 90 days (processing times vary according to service center and time of year) to process. A recently implemented program allows for H1B visas to be expeditiously processed within 15 days with the submission of an additional $1000US premium processing fee. The application procedure itself is quite a bit more complicated than the TN, and one of the requirements is the filing of a Labor Condition Application with the Department of Labor, which requires the employer to make several attestations in regard to the position, the salary and other working conditions which might affect compensation. There are also restrictions on the minimum salary an employer may pay an H1B candidate for a particular type of position located in a particular geographical area.

What are the advantages of the H1B?

  1. The H1B is not a visa available through NAFTA and is therefore available to qualified applicants who are citizens of countries other than Canada and Mexico.
  2. The H1B is available to Canadians who do not qualify under one of the occupational categories as set out by NAFTA for the TN visa. In particular, the H1B visa is popular for Computer Programmers (TN visas are available to Systems Analysts but not Programmers) and Elementary and Secondary teachers (TN visas are available only for teachers in post-secondary institutions, vocational schools and seminaries.)
  3. The H1B is valid for 3 years and renewable for an additional 3 years. The renewal application is submitted to the applicable Service Center in a similar fashion as the original application.
  4. The H1B allows for “dual intent”, and allows the employee to apply for permanent residency / immigrant status while continuing to work under his/her H1B status.

What are the disadvantages of the H1B?

  1. Many employers are less willing to sponsor potential employees for H1B visas due to the relatively higher costs and additional employer obligations. For most employers, the H1B application fee will be $1110US (which does not include the premium processing fee. For employers which fall under one of the exemption categories (which include educational institutions recognized under the Higher Education Act of 1965, and research and non-profit organizations related to institutions recognized under the Higher Education Act of 1965), the application fee will be $110US.
  2. The H1B visa is subject to a quote each year—the processing towards which commences on October 1 of the previous year. That is, the processing towards the 2000 quota commenced on October 1, 1999, the processing towards the 2001 quota commenced on October 1, 2000, and so forth. As of October 1, 2000, the US CIS started processing H1B applications towards the 2001 quota—which was recently increased from 115,000 to 195,000. This quota will also remain in effect for the fiscal years of 2001, 2003, and 2003—and will drop back to the original 65,000 in 2004.

Dependants of the H1-B are entitled to H4 status. This includes spouse-by-marriage (common-law partners are not recognized as dependants for visa purposes) and children of the H1-B holder.