Area of Law: USA Travel and Immigration
Answer # 1042
Temporary H-1B Work VisaRegion: Ontario Answer # 1042
What is the H1-B Visa?
This is a temporary visa is obtained by foreign individuals looking to work in the USA in a professional position. It is usually issued for a three-year period, but can be extended to six years.
Basic candidate requirements
The H-1B visa is for those working in a specialty occupation with a minimum of a USA Bachelor’s degree (or foreign equivalent or equivalent education and/or experience) in a field related to the specialty occupation.
Specialty occupation means that the position is one where a Bachelor’s degree or equivalent is the standard requirement for the position.
In addition to the basic candidate requirements, to be eligible for an H-1B Visa, you must:
- have a job offer from a USA employer who will sponsor your visa application;
- the position must be considered a specialty occupation; and
- be paid the prevailing wage – which means the minimum wage for that occupation in the geographic area in which you will be working.
A specialty occupation can include numerous types of professions, such as:
- computer engineer
People with USA Graduate degrees
If you are a Canadian citizen with an advanced USA degree (Master’s degree or higher), you are eligible to be considered for one of the 20,000 USA Master’s Cap visas. This is beneficial because applicants with a USA Master’s degree or higher get two chances in the H-1B lottery (which takes place in April of every year). They first go into the 20,000 pool set aside for those with USA Master’s degrees or higher, and if not selected in that lottery, go into the general 65,000 pool.
Canadian fashion models can also work in the United States on an H-1B visa. Although in most cases a person must have a Bachelor’s degree or higher to obtain an H-1B visa, fashion models are exempt from this requirement. However, fashion models under an H-1B visa must show that they are of distinguished merit or ability –namely that the fashion model has reached a high level of achievement in the fashion modeling industry, and can show that he or she is prominent, and nationally or internationally recognized.
If they meet the requirements, Canadian owners of USA companies may be able to have their company sponsor them for an H-1B visa. To qualify, they must have a bachelor’s degree or higher (or equivalent) in a field related to their area of work, and they must be employed by the company to work in that occupation. The applicant will have to show that the company has the right to control the owner’s employment and that they are subject to termination at will. For example, a Canadian with an MBA who helps found a company and is serving as its CEO, could qualify for an H-1B if the company’s Board is willing to sponsor them for the visa.
H-1B Visa application requirements
The H1-B Visa is among the most popular visas available in the United States. There is an annual lottery where 85,000 petitions will be randomly selected in two caps. The first cap, where 20,000 petitions will be chosen, is comprised of petitions, which indicate an advanced degree. Any petition unsuccessful in this first cap will be re-entered into the general cap consisting of 65,000 slots. Furthermore, if the employer is a higher education institution, non-profit organization associated with a higher education institution or government organization, the petition will be cap-exempt.
An H-1B visa application, called a petition, can only be filed by the person’s prospective employer. The employer will act as, and be referred to, as the petitioner. The prospective employee is called the beneficiary. For beneficiaries that have not previously counted against the H-1B cap, USCIS will only accept applications the first five business days of April, for an H-1B that would start on October 1st of that year. For the past several years, U.S. Citizenship and Immigration Services (USCIS) has used a random lottery system to determine which petitions they will adjudicate as the demand for new H-1Bs has been greater than the number of available visas.
H-1B application process:
- Submit Labour Condition Application (LCA) to Department of Labor (DOL).
- Completed petition is sent to the correct USCIS service center.
- Employee applies for visa and/or admission. Once the Form I-129 petition has been approved, the prospective H-1B worker who is outside the USA may apply with the U.S. Department of State (DOS) at a U.S. embassy or consulate abroad for an H-1B visa (if a visa is required). Regardless of whether a visa is required, the prospective H-1B worker must then apply to U.S. Customs and Border Protection (CBP) for admission to the United States in the H-1B classification.
The application process can take several weeks to 7+ months.
How long is an H-1B Visa valid?
The H-1B visa is usually valid for a period of up-to three years. The time period may be extended, but generally cannot go beyond a total of six years, unless you qualify for one of the exceptions under the American Competitiveness in the Twenty-First Century Act.
For example, if you have applied for an employment-based green card while on your H-1B, you are eligible to extend your H-1B until receipt of your green card. In addition, the H-1B visa also allows for dual intent, which means that you can apply for permanent residency while on the visa.
What if the H-1B visa holder is fired or quits?
If your employer terminates your employment before your visa expires, the employer will be liable for the reasonable costs of your return transportation to your last country of residence. If you quit before your visa expires, you must pay for your return transportation costs to Canada.
A criminal record will prevent you from entering the USA or obtaining your USA immigration status. To erase your Canadian criminal record, call toll-free 1-888-808-3628 or learn more at Pardon Partners. It’s easier than you think.
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