I missed Canada’s H1-B Holder Open Work Permit application window. What are my options?

On July 16, Canada introduced a new Open Work Permit (OWP) for H-1B visa holders as part of Canada’s new tech talent strategy.

The OWP gives candidates in specialized occupations the ability to work for almost any employer in Canada, is valid for up to three years and holders are allowed to bring their immediate families to Canada with them.

It proved to be an extremely popular option and the cap of 10,000 applications was reached within two days, leaving some wondering what other options are available for H-1B holders to immigrate to Canada.

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There are still several ways for an H-1B visa holder to potentially enter Canada, many of which do not require a Labour Market Impact Assessment (LMIA). An LMIA is a document Canadian companies or employers must submit to prove they will not negatively impact (or at least have only a neutral impact) Canada’s economy or labour force by hiring foreign nationals.

Here is an overview of some prominent temporary worker pathways into Canada for H-1B visa holders.

Global Talent Stream

Canada’s Global Talent Stream (GTS) is a popular option for foreign nationals working in the IT sector, which makes them eligible under the definition of “specialty occupation” for an H-1B visa holder. Employers who wish to hire using this program must submit an LMIA.

There are two categories under this stream.

The first, Category A, is for expanding companies that can demonstrate a need to hire specialized talent from abroad. These companies need to be referred to the Global Talent Stream by a designated referral partner, which is typically a local or provincial business association.

Category B is for companies that need to hire certain skilled foreign workers for any of the occupations on the Global Talent Occupations List. These occupations are considered in-demand with an insufficient domestic labour supply.

Candidates who have applied under the GTS can expect their application to be processed within two weeks according to the Immigration Refugees and Citizenship Canada (IRCC) processing standard.

Intra-Company Transfers

Intra-Company Transfer Work Permits (ICTs) are another type of specialized work permit that does not require employers to obtain an LMIA. It is geared towards companies with branches in multiple countries to facilitate the movement of employees.

It works for employers under two circumstances.

The enterprises outside and inside of Canada have a parent, subsidiary, branch, or affiliate relationship.
The two enterprises are doing business. This means they are providing goods and services on an ongoing basis. The company must be operational in Canada; they cannot just have a physical location in Canada.

If an employee wishes to get an ICT Work Permit, they must be:

Currently employed by a multi-national company and seeking entry to Canada to work in a parent, subsidiary, branch, or affiliate of that company.
Transferring to a company that has a qualifying relationship with the company in which they are currently employed and will be undertaking employment at a legitimate and continuing establishment of the company in Canada.
Have been continuously employed (via payroll or a contract) by the company that plans to transfer them to Canada in a similar full-time position for at least one year in the three-year period immediately preceding the date of the initial application.
Coming to Canada for a temporary period only.
comply with all of Canada's immigration requirements for temporary entry

Further, they must be a senior or executive manager, a functional manager or have specialized knowledge.

CUSMA

The Canada United States Mexico Agreement (CUSMA) is an option for Mexican citizens who are employees of multi-national companies with a branch in Canada. Like the Global Talent Stream and Intra-Company Transfers, this work permit does not require an LMIA.

Further, American and Mexican citizens do not require a Temporary Resident Visa to enter Canada, so applications for a CUSMA Work Permit can be done at a Port of Entry (such as a border crossing or airport), or at a Visa office, either online or by paper.

CUSMA participants fall into four categories of temporary work:

Professionals must work in one of approximately 60 targeted professions and have pre-arranged employment in Canada. Self-employed professionals are not eligible.

CUSMA ICTs are issued to employees who are in Canada temporarily to work for a branch of their US or Mexican employer. They are only eligible if they have worked continuously for their employer for at least one of the last three years in a similar position to the work being done in Canada.

CUSMA Traders is an option for those who can show that they intend to carry out 50% of their trade of goods or services between Canada and their country of citizenship. This can be based on either the volume or the value traded.

CUSMA Investors must show that they have made a significant investment in a new or existing Canadian business. They need to demonstrate that they are seeking entry to Canada to develop and direct the Canadian business.

Business Visitors

A foreign national may be able to enter Canada on business without an LMIA for several reasons such as attending business meetings, buying Canadian goods, providing after-sales service, getting trained by a Canadian parent company or training other employees.

To be eligible, business visitors must show that

they plan to stay for less than six months,
they do not plan to enter the Canadian labour market,
the main place of business, and source of income and profits, is outside Canada,
they have documents that support their application and
they meet Canada’s basic entry requirements

Schedule a Free Work Permit Consultation with the Cohen Immigration Law Firm