H-1B Visa

You must first have a job from an employer who will sponsor you for this visa. You cannot apply for this visa on your own or without a job offer.

This is one of the most popular, and most sought after, U.S. work visas. Even those who are unfamiliar with U.S. immigration law have probably heard of the H-1B visa.

What is it?

The H-1B Non-Immigrant Work Visa may be issued to Canadian citizens seeking temporary work in a "specialty occupation," which requires the skills of a professional. What is "specialty occupation"? Generally speaking, they are occupations that require at least a bachelor's degree or its equivalent, such as accountants, computer analysts, web programmers, web designers, engineers or financial analysts. However, relevant experience may be considered in lieu of such education requirement in some cases. H-1B visas can be issued for either full-time or part-time employment.

How do I apply for an H-1B?

An H-1B petition can only be filed the employer. The Canadian citizen/employee cannot seek an H-1B visa without an employer willing to file a petition. USCIS begins accepting H-1B petitions on April 1st of every fiscal year. In legal terms, the employer will act as the petitioner while you, the employee, are the beneficiary. It is a multi-step process involving applications to be submitted to the Department of Labor, USCIS, and even the Department of State will first have to file a Labor Condition Application (LCA) with the U.S. Department of Labor. To qualify for an H-1B, you must be paid the prevailing wage – which means the minimum wage for that occupation in the geographic area you will be working. The process usually takes a few months unless the employer files the petition under premium processing.

Things you should know

If this is the first time an employer is filing an H-1B petition on your behalf, be sure the petition is filed on April 1st. Every year, there is a quota of 65,000 H-1B visas available for beneficiaries with bachelor’s degree. There is an additional 20,000 H-1B visas available for beneficiaries with a U.S. Master’s degree. The last thing you want is to have the quota met for that fiscal year and not be eligible for an H-1B for another year.

If you miss the H-1B lottery, or if you anticipate a delay in filing an H-1B, you should consider other visas to fill the gap, such as a TN visa or an L-1 visa. You should know: The earliest start date for an H-1B is Oct 1st of that fiscal year (in other words, six months from the start of the fiscal year). For example, a petition filed on April 1, 2011 must have a start date of October 1, 2011 - not a day earlier. On the other hand, a petition filed on or after October 1st may have a start date based on the anticipated date of approval. For example, a petition filed on October 1st should request a start date of December 1st, since it will take approximately two months for the USCIS to adjudicate an H-1B petition. Again, you should consider other visas such as a TN to fill the time gap between April and October if you wish to start working for your employer prior to October 1st. You should know: The H-1B visa is valid for up to three years, and it can be renewed for another three years for a total of six years. After six years, you have to leave the United States for a period of one year before you can re-apply for a new H-1B. If you have applied for an employment-based green card while on your H-1B, you are eligible to extend your H-1B indefinitely under an act known as AC21. You should know: The H-1B allows for "dual intent," which means that you can apply for permanent residency while on the visa. This is important because other work visas, such as TN, does not allow for dual intent. Thus, if you apply for a green card while on a TN visa, it would contradict your supposed intent to return to Canada upon expiration of the visa. This, in turn, could affect your chances of a green card approval or it could result in a revocation of your TN visa.

Graduate Degrees

In addition to the annual 65,000 H-1B visas, Congress has allotted an additional 20,000 H-1B visas for people with advanced degrees (M.D., J.D., MBA, Ph.D. etc.). So if you are a Canadian citizen with a medical degree, law degree, or any other graduate degree, you are eligible to be considered for one of the 20,000 Master's Cap visas beyond the 65,000 regular cap. This is beneficial because applicants with a graduate degree do not fall into the general pool of applicants - of which there are usually more than the allotted 65,000. It should also be noted that Canadians with a graduate degree have a leg up when it comes to obtaining a green card through employment.

Fashion Models

Canadian fashion models can also work in the United States on an H-1B visa. While the H-1B visa generally requires the beneficiary to have a bachelor's degree or higher, a fashion model under an H-1B does not need to have such a degree. Instead, the requirements for a fashion model under an H-1B visa are that he/she is of "distinguished merit or ability." What does that mean? Stated simply, the fashion model must be prominent, is nationally or internationally recognized, and has reached a high level of achievement in the field of fashion modeling. Thus, the requirements for a fashion model under an H-1B visa are very different than "specialty occupations," where educational level and job duties are more of a determining factor. Instead, the requirements of an H-1B for fashion models are more like those needed for a beneficiary of extraordinary ability under an O-1 visa.

Entrepreneurs

Foreign owners of U.S. companies may be able to sponsor themselves for H-1B visas if the owners have a bachelor’s degree or higher in a specialized field and the company will employ the owner in that occupation.  For example, a Canadian with a computer science degree who founded a U.S. tech company can sponsor himself for an H-1B to work as a software engineer at his own company.  The applicant will have to show that the company has the right to control the owner’s employment.  For more information on H-1B visas for specialized occupation entrepreneurs, visit Silicon Visas.

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