For Canadians or Mexicans who do not qualify under 1 of the occupational categories for the TN under NAFTA, the H1B1 visa is an option for professional and specialty occupations. The H1B1 is also available to other non-Americans who are seeking work visas for professional and specialty occupations.
The requirements for the H1B1 is that the employee must have a minimum of a bachelor’s degree or equivalent education and experience. The position itself must be of a level of complexity and sophistication requiring 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 or higher degree.
While certain occupations have been long recognized by 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 must be submitted.
H1B1 visa applications are adjudicated by CIS. H1B1 can be expeditiously processed within 15 days with the submission of an additional $1450US premium processing fee. The application procedure itself is more complicated than the TN. 1 of the requirements is the filing of a Labor Condition Application (LCA) 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 H1B1?
- 1. The H1B1 is not available through NAFTA but is available to applicants who are citizens of all countries.
2. The H1B1 is available to Canadians and Mexicans who do not qualify under 1 of the TN occupational categories. In particular, the H1B visa is popular for computer programmers and elementary and secondary teachers (TN is available only for teachers in post-secondary institutions, vocational schools and seminaries.)
3. The H1B1 is valid for 3 years and renewable for an additional 3 years. The renewal application is submitted to the applicable Service Center.
4. The H1B1 allows for “dual intent“, and allows the employee to apply for permanent residency (immigrant status) while continuing to work under his/her H1B1.
Dependants of the H1B1 are entitled to H4 status. This includes spouse-by-marriage (common-law partners are not recognized as dependents) and children of the H1B1 holder.