This June, Canada opened up an application pathway for the new foreign workers permit.The permit allows those living and working in the US who hold H-1B visas to move to Canada.
This came along as Canada applied a new strategy to attract foreign tech workers to the country as part of their Digital Nomad Strategy.
Previously, foreigners with Canadian job offers could transition to a Canadian work permit. But with the Digital Nomad Strategy, tech workers with jobs for foreign employers can arrive in Canada and keep working for their previous employers, rather than a new Canadian employer.
What is an H-1B Visa?
The original H-1B visa is a non-immigrant visa allowing high skilled foreign workers to work in the United States.
As of June 16th, 2023, new legislation came into place allowing US H-1B visa holders to apply for Open Work Permits in Canada. This means that anyone covered under an H-1B Specialty Occupation visa in the US could also apply to similar roles in Canada or for Canadian companies through an Open Work Permit.
This initiative is meant to hold qualified workers (primarily in the tech sector, but can apply to banking, finance, or other mentioned high-skills roles) in North America. The thinking behind the policy is to help improve the North American workforce and areas of economic development.
How Does the H-1B Visa Canada Work?
Per recent legislation, workers who hold H-1Bs that allow them to live and work in the US are allowed to use those visas in Canada to get an open work permit for up to three years. If your passport expires in under three years, the open work visa would expire at the same time as your passport.
Who Can Apply for an H-1B Visa?
H-1B visas are open to highly educated US immigrants working unspecialized industries like tech. Generally, for an H-1B, a worker must have at least a bachelor’s degree or some kind of reputable post-secondary accreditation.
While Canada's new program for U.S. H-1B visa holders was announced as part of the federal government’s aggressive plan to attract workers in the technology sector, the program is open to any holder of a U.S. H-1B visa, regardless of employment industry..
Although highly skilled tech workers are in most demand, the visa is technically open to any US workers. Roles that are most commonly approved for H-1Bs includes software engineers, electrical engineers, doctors, teachers, and graphic designers.
If an H-1B applicant is successful, they can get an open work permit to live and work in Canada for up to three years. The working criteria of the Canadian work permit will be upheld even in case of a worker being laid off or quitting their job. This is different from the the U.S. version of the H-1B, where workers need to find a new job in 60 days following a layoff or termination, or otherwise be forced to leave the country altogether.
You can’t extend the Canadian H-1B work permit, but permit holders can apply through different visa programs after their three-year period comes to an end.
Like a U.S. H-1B, the Canadian H-1B visa pathway will also let spouses, common-law partner and children of accepted workers to stay in Canada for the same allotted time period as the visa holder, so a family member can come with you.
How to Apply for a Canadian Work Permit Through the H-1B Visa
To obtain a Canadian Work Permit, interested H-1B holders can apply through the the Immigration, Refugees and Citizenship Canada (IRCC) page portal. They need to submit a series of documents including a copy of their current H-1B visa, US proof of residency and a Notice of Action form that confirms when their workers permit was approved by the American government.
It costs CAD 155 to apply for this permit. Successful applicants can expect to know if their application was successful - or not - in about six weeks..
According to the IRCC, once an application is approved, a port of entry letter of introduction will be sent out explaining to the applicant how long they’re allowed to work in Canada and what working conditions they may be subject to.
Right now, there are about 400,000 H-1B visa holders in the United States. The policy is only meant to accept qualified applicants for one year or until they get 10,000 applications, whichever comes first. As of July 17th, 2023, the applicant cap was reached for the year.
Other Ways to Hire Skilled Workers in Canada
Outside of this new initiative (which is now closed, at least for the year), H-1Bs don’t exist as an option for Canadian workers, they are American-specific. In Canada, the equivalent visa category to hire foreign skilled workers is called the "Temporary Foreign Worker Program" or the "International Mobility Program," depending on the specific framework.
If you're looking to hire foreign talent in Canada, you’ll need to explore the correct pathways provided by the Canadian government. These are a few examples:
Temporary Foreign Worker Program (TFWP)
The TFWP allows Canadian employers to hire foreign workers temporarily when qualified Canadian citizens or permanent residents aren’t available to work.
The process involves getting a Labour Market Impact Assessment (LMIA) from Employment and Social Development Canada (ESDC), to assess whether hiring a foreign worker will have a positive or negative impact on the Canadian labor market. If the LMIA is approved, the foreign worker can apply for a work permit.
International Mobility Program (IMP)
The IMP covers various streams that make it easier to hire foreigners without needing an LMIA. These streams include intra-company transfers, working holiday agreements, and more. Some IMP streams require a job offer from a Canadian employer and may have specific requirements based on the nature of a job and a worker’s qualifications.
Global Talent Stream (GTS)
This is a specific stream under the Temporary Foreign Worker Program that aims to expedite the process of hiring high-skilled foreign workers. It's divided into two categories: A for established employers with a track record of hiring foreign workers, and B for start-ups and high-growth companies. The GTS offers a streamlined process for LMIA approval and work permit issuance.
Provincial Nominee Programs (PNPs)
Every Canadian province and territory has its own PNP that allows them to nominate foreign workers with skills and experience needed in their specific region. Some PNPs have pathways for employers to directly hire foreign workers, often without the need for an LMIA.
Post-Graduation Work Permit (PGWP)
This is for international students who have graduated from a Canadian school. It lets them to work in Canada for up to three years after completing their studies, providing Canadian employers with an opportunity to retain top talent in the fields they graduate in.
These are general guidelines, but Canada’s immigration system is complicated and can change frequently. The best approach would be to consult with immigration professionals or visit the official website of Immigration, Refugees, and Citizenship Canada (IRCC) for the most up-to-date and accurate information on hiring foreign talent in Canada. If you need tips on how to remain compliant within these hiring schemes, an EOR like Borderless can also be an asset.
How Can Visa Holders Use the H-1B Once They Have It?
So how can you actually use an H-1B visa once you get it? You’ll need to go through a process called H-1B visa stamping. This refers to obtaining a physical visa stamp in your passport letting you enter the US in H-1B status.
Here’s how H-1B visa stamping works.
Approval of H-1B Petition
Before you can apply for an H-1B visa stamp, your US employer will need to file an H-1B petition on your behalf. After the petition gets approved by the U.S. Citizenship and Immigration Services (USCIS), you’ll get an Approval Notice (Form I-797).
Visa Application
Once you have the H-1B approval notice, you can continue on with the administrative processing for an H-1B visa at a US embassy or consulate in your home country. To do this, you’ll need to submit the required documents, including Form DS-160 (Online Nonimmigrant Visa Application), and pay a visa application fee.
Scheduling Your Visa Interview
After you've completed the DS-160 and paid, you can schedule appointment for a visa interview at the US embassy, consulate, or visa application center. Your scheduled interview appointment is a crucial step in the process and you’ll need to answer some questions like your intended employment, work background, and others. You may need proof from a previous employer to get your employment authorization.
In-Person Visa Interview
On the day of the interview, you'll have to bring documents like your passport, DS-160 confirmation page, visa application fee receipt, Form I-797 (H-1B approval notice), and a recent photo, to the embassy or consulate.
Decision
During the interview, a consular officer will review your documents and ask you questions about your planned employment, qualifications, and intentions in the U.S. Based on the interview and your application. They’ll then decide whether to approve or deny your visa.
Visa Stamping
If your visa application gets approved, the consular officer will have your H-1B visa stamped in your passport. This stamp will include important information like your visa category, the dates you can enter the U.S., and the number of entries allowed, etc.
Entry to the U.S.
With the H-1B visa stamp in your passport, you can travel to the U.S. through a port of entry. The U.S. Customs and Border Protection (CBP) officer at the port of entry will inspect your documents and decide whether to let you into the U.S. under H-1B status.
Visa stamping won’t determine how long you can stay in the U.S.; that is determined by the I-94 arrival/departure record issued by the CBP officer upon entry, so make sure to keep track of entry dates in your own records too. In principle, H-1B visa allows foreign nationals to reside in the US on a temporary basis.
Furthermore, visa stamping is just one aspect of H-1B application. Maintaining valid status in the U.S. means complying with the terms of your H-1B employment, like your job position, location, and employer, if applicable (in cases where you are required to stay with one employer).
How Can an EOR Help With H-1B Visa Process?
If all of this feels complicated, there is a way you can streamline and simplify the process. An Employer of Record (EOR) can help provide comprehensive employment and admin services for businesses looking to hire and manage employees in a foreign country. When it comes to H-1B visas and hiring foreign workers in the United States (or, theoretically going to Canada through an American visa, in this case), an EOR can help you streamline the process.
EORs can assist with:
Employment Compliance: An EOR specializes in employment and immigration regulations. They can help ensure that your company and the foreign workers you hire comply with all relevant laws, regulations, and visa requirements, including H-1B regulations. This can be particularly helpful if your company is not familiar with U.S. immigration and employment law.
Visa Sponsorship: The H-1B visa generally means an employer needs to sponsor a foreign worker. EORs can act as the legal sponsors for the H-1B visa, managing the visa petition process, and helping you submit the necessary forms properly.
Petition Preparation: You’ll need to get an H-1B petition ready and an EOR can assist with that. This includes Form I-129 (Petition for a Non-Immigrant Worker) and any other documents you need. They can ensure that the application is complete, accurate, and meets the USCIS requirements.
Filing and Communication: An EOR like Borderless can communication with USCIS on behalf of a foreign worker and the sponsoring company. This can help ease administrative burdens and make sure you give quick, accurate responses to USCIS inquiries.
Legal Expertise: EORs generally come equipped with legal experts, or in some cases, a full legal team who are well-versed in immigration laws and regulations. They can provide guidance on legal matters related to H-1B visa sponsorship, compliance, and continuous employment.
Onboarding and Payroll: When an H-1B petition gets approved, EORs can manage various aspects of employee onboarding (depending on which package you choose), often including payroll, benefits, tax withholding, and other employment-related tasks.
Flexibility: For companies with no physical U.S. entity or those looking to test the market out without establishing a full legal entity, EORs can be a flexible solution, even in the interim, when you hire and manage foreign workers.
How Can Borderless Help?
Whether you are looking to work with current H-1B visa holders, or are thinking about bringing them on board in the future, legal compliance is crucial.
As an employer, compliance questions can be tricky to navigate, especially if your business is undergoing a period of expansion or change.
Borderless helps you ensure compliance at every level of your growth or transformation process, so you have more time to focus on real change within your company. Book a demo today to see how Borderless can make your global onboarding and expansion smooth, simple and people-friendly.
Disclaimer
Borderless does not provide legal services or legal advice to anyone. This includes customers, contractors, employees, partners, and the general public. We are not lawyers or paralegals. Please read our full disclaimer here.
