I am a Canadian citizen that was offered a job with a U.S. company. What nonimmigrant visas should I consider?

Question:

I am a Canadian citizen and would like to work in the United States on a temporary basis. I was offered an opportunity to work with a commodity trading firm in New York, but I am unsure what nonimmigrant visa, if any, would be applicable. Currently, I work with Canadian Air Force. I have a Bachelor of Arts from the Royal Military College of Canada in Military Strategic Studies (which is a combination of political science, international relations and history courses). Do you have any suggestions as to what visa would be appropriate for me?

Answer:

Thank you for your question. Employment-based nonimmigrant visas, such as an H-1B or TN, can be complicated, so I would encourage you to call the office and set up a consultation to discuss your case in detail. In the meantime, below is some general information that you may find helpful until we have an opportunity to speak. 

H-1B VISA

U.S employers may employ foreign nationals with an H-1B visa. The H-1B visa allows for temporary employment of professional workers.

Eligibility

In general, the key issues in determining eligibility for H-1B classification are: (a) whether the position is a "specialty occupation"; and (b) whether the beneficiary meets the requirements for the specialty occupation. To establish that a job qualifies as a specialty occupation under USCIS regulations, one or more of the following criteria must be met:

  • A bachelor's or higher degree or its equivalent is normally the minimum requirement for the position;
  • The degree requirement is common to the industry or, in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree;
  • The employer normally requires a degree or its equivalent for the position;
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

In addition, United States Citizenship and Immigration Service (“USCIS”) now requires that your degree be in a specialty field related to the position to be filled. In other words, the idea is that the courses that you completed for your degree should supply the knowledge and skills necessary to perform a specific job. 

You may encounter an eligibility issue based on the fact that your degree/major is not business related. While you may prevail under the first prong of the H-1B analysis (i.e., having a bachelor degree), your application may fail under the second prong of the analysis.

Numerical Cap/Timing Issue 

If you were expected to begin working this year, your application is likely too late to prepare and file at this point. The H-1B visa has an annual numerical cap of 65,000 visas. In recent years, the cap was hit quickly, so it is critical to file your application as soon as applications are accepted. As an example, in 2014, USCIS announced that the statutory cap for applications was hit within seven (7) days. This year, applications can be filed beginning April 1, 2015 for an October 1, 2015 start date. If, in fact, you are eligible for H-1B status, you will likely have to wait until next year to apply. I suspect that the cap will be hit again within the next few days. 

TN VISA

As a Canadian, you may consider a TN visa for U.S. based employment. There are several requirements (outlined below) for obtaining a TN visa, but the process in general is much quicker and less cumbersome than the H-1B visa process. In general, the nonimmigrant NAFTA Professional (TN) visa allows Canadian citizens to work in the United States in certain business activities. A Canadian may be eligible to work in the United States as NAFTA professional under the following conditions:

  • Applicant is a citizen of Canada;
  • Profession is on the NAFTA list;
  • Position in the United States requires a NAFTA professional;
  • Applicant will work in a prearranged full-time or part-time job for an employer (self employment is not permitted);
  • Applicant has the qualifications, meeting the specific requirements, education, and/or experience, of the profession.

Under NAFTA, there is no qualifying designation for the position of a commodity trader. For a complete list of professions covered by Appendix 1603.D.1 of the North American Free Trade Agreement, click on the following link: NAFTA professions. Even though commodity trader is not an option, you should review the NAFTA professions list in the event that you are offered future U.S. employment.

B-1 STATUS

Does the company offering you employment have a Canadian office? If so, have you considered a scenario where you work at the company's Canadian office and make trips to U.S. office for company meetings, associate consultations, etc.? As a Canadian, you are visa exempt and do not need to go through the traditional visa process for a B-1 visa. Rather, you would seek admission in B-1 status at a port of entry (e.g. Peace Bridge or Lewiston-Queenston Bridge). For more information about B-1 status, click on the following link: Business Travel to the United StatesYour activity under B-1 status is limited, but it may be your best/only option at this point in time.  

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