We spoke to Melissa Salvador, an immigration lawyer at Altro LLP, who talked us through how immigration will affect the employment landscape
We spoke to Melissa Salvador, an immigration lawyer at Altro LLP, who talked us through how immigration will affect the employment landscape.
Which Canadian workers are eligible to apply for an H1-B work visa?
The H-1B visa is primarily for skilled workers performing services in specialty occupations, which require a Bachelor’s or higher degree or its equivalent that is common for entry into the particular profession. In other words, the worker must possess at least a Bachelor’s degree, because the job is so complex and/or unique that it can only be performed by an individual with a degree. In addition to the degree, the Canadian worker must also have experience directly related to the position being offered and, if required for the specialty occupation, hold an unrestricted state license, registration, or certification that authorizes the person to fully practice their specialty occupation. Examples of such specialty occupations include engineers, lawyers, doctors, computer programmers, and accountants, to name a few.
How will these visa changes affect the employment landscape in Canada?
While the legal requirements for the H-1B visa have remained unchanged, the current administration has adopted policy changes that affect the way H-1Bs are approved or denied, stemming from the “Buy American, Hire American” executive order President Trump signed last April. Consequently, there are new challenges when applying for an H-1B visa:
- a rise in the number of “requests for evidence” the Service has issued to require additional documentation and information to substantiate the need for the visa
- increased scrutiny over whether a position is in fact a “specialty occupation” by questioning an entry-level salary for the position offered and the need for a bachelor’s degree in connection with certain jobs
- USCIS is conducting more site visits to ensure the veracity of employer and applicant information.
These challenges coupled with the unrelenting lottery year-after-year since 2014 due to the inadequate number of available H-1B visas has made many – employer and immigrants alike - feel like applying for an H-1B is a lost cause.
I would imagine that this bodes well for the Canadian employment landscape. More Canadian workers may remain here in Canada, keeping the talent pool from shrinking. It could also expand Canada’s talent pool, by making the country more attractive to skilled immigrants.
What should employers do to safeguard their talent?
For Canadians who are denied an H-1B visa, there are other alternatives depending on the nature of the business and the background of the employee:
- TN visa – a non-immigrant visa for NAFTA professionals that allows skilled workers from Canada and Mexico to work in agreed upon business activities for US companies
- L1 visa – this visa is for intracompany transferees. It allows companies to send managers, executives or skilled employees to the US to continue their employment with the same employer, its parent, or a subsidiary.
- Treaty trader/investor (E-1/E-2) – this is a non-immigrant visa that allows people to enter the US for the purpose of engaging in substantial trade or capital investment.
The deadline to apply for an H-1B visa is April 2nd. With the uncertainty surrounding the future of the program, employers should be working with an experienced immigration lawyer to submit applications as soon as possible.
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