Only a U.S. employer can sponsor you for an H-1B visa. You cannot apply for an H-1B visa on your own, without a job offer, or without a U.S. employer willing to sponsor you.
What is an H-1B visa?
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 visa?
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 about the H-1B visa
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, 2019 must have a start date of October 1, 2019 – 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.
H-1B visa versus TN visa
Canadians have the benefit of being able to choose between an H-1B visa and a TN visa. The question is, which one is better? The answer is that it depends on many things.
- More occupations and professions are available under an H-1B visa than the TN visa. There is a specific list of TN occupations. If you don’t fall under a TN profession, you won’t qualify for a TN
- H-1B is a dual intent status – meaning you can be sponsored for a green card while in H-1B status
- Harder to get. The H-1B visa is usually subject to a lottery, meaning that it is only available if an employer files a petition on April 1st of each fiscal year
- The H-1B must be filed by an employer – known as the petitioner. The employee cannot file his or her on H-1B application
- You may only have an H-1B for 6 years unless you qualify for an extension under AC21. Otherwise, you would have to leave the U.S. for at least one year before getting another H-1B
Click on TN Visa to learn about the advantages and disadvantages of a TN visa versus an H-1B visa.