Alternative Immigration Strategy for H1B Visa Holders

Anyone who came to the United States in H1B visa status and now wishes to remain by adjusting to permanent residence, knows the exceptional hardships involved with U.S. immigration. These struggles include priority dates and the visa bulletin, particularly for applicants from India, China, Mexico and the Philippines. To some of these immigrants, sometimes it seems like they must remain in non-immigrant temporary status forever and the elusive green card is only a dream.

As if it was not hard enough to obtain a labor certification from the Department of Labor, especially in the face of the millions of Americans who are unemployed or underemployed, that was only the beginning of the journey. Having gotten their employer to file the I-140 petition to start the immigration process, and obtained approval from the US Citizenship and Immigration Service (USCIS), now the applicants must be careful about running out of status.

Three kinds of mistakes can be fatal.
Firstly, an H1B visa holder allows their six-year maximum term of authorized stay to expire without taking steps to extend soon enough. Secondly, the H1B visa holder has indeed extended their period of authorized stay beyond the six years maximum for one year because a year has passed since the labor certification or the I-140 petition has been filed. They now must extend yearly. Woe be anyone who fails to do so.

Thirdly, the applicant has extended the period of authorized stay beyond six years for another three-year increment by virtue of being ineligible to apply to adjust their status because their priority date is not current. They must extend every three years. Woe be to anyone who fails to do that.

Then there are the complications related to traveling home while waiting for eligibility to adjust. All this can be nerve racking! Such immigrants must wait in a U.S. holding pattern until their priority date comes due and then they can file to adjust their status inside the United States. Spouses of such H1B visa holders must wait years in H-4 status for adjustment of status so they can also finally go to work. Or must they? Pace Law Firm has a program to help some of these individuals deal with their temporary U.S. inadmissibility and at least make it easier to achieve their dream of becoming a permanent resident by first moving to Canada. The individuals involved must be executives, managers or workers with specialized knowledge and work for an employer that either has a branch or subsidiary office in Canada, or would be prepared to open such an office there.

Instead of waiting five, six or more years in a cue, the Pace Law Firm program calls on the employer to send the worker up to Canada to work for the branch office. Often the employee can do the same or similar work to what they have been doing in the United States. The employee is transferred to Canada as an inter-corporate transferee and gets a work visa on that basis. Furthermore, the spouse also gets a blanket work permit. While on the work permit they can travel back and forth to the U.S.

Under the current immigration law, such a worker would be entitled to apply for permanent residence in Canada in one year’s time under the Canadian Experience Class. Thus, from the moment they arrive both the spouses will be able to go to work. They will be able to visit the U.S. as often as they like. And one year later, they will be able to apply for permanent residence. Processing of that application will take about a year to become a Canadian Maple Leaf card (like green cards in Canada,) holder. This provides a back-up option and a level of certainty that the applicants currently do not enjoy.

What about the U.S. application?
Well, apart from the one change of applying from Canada rather than adjusting inside the United States, there is no delay or disruption in the processing of the I-140 petition. When the priority date comes current the applicant simply applies through the U.S. Consulate closest to where they are living in Canada. When they are approved they return to the USA for landing and receipt of their green cards. The families come with them and get the same status.

However, these workers could also possibly benefit from the one year Canadian employment in terms of processing time in the United States. That is because having worked in Canada for that one year, they could thereby switch from EB-3 third preference as an H1B visa holder to EB-1 inter-corporate transferee first preference applicant provided they can show they worked in Canada as a manager or executive. This step could shave off as much as 11 years of waiting time for Indian workers, 9 years off for Chinese (mainland) workers, and three years off for Mexican and Filipino workers, if they can show they worked in managerial or executive roles.

The following outline will help in determining if the Canadian work would lead to escalation in the processing time for your U.S. green card application from EB-3 to EB-1 status:

Managers
Managerial capacity means an assignment within an organization in which the employee primarily:

Manages the organization, or a department, subdivision, function, or component of the organization;

• Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;
• Has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) if another employee or other employees are directly supervised; if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and
• Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by a virtue of the supervisor's supervisory duties unless the employees supervised are professional.

Executives
Executive capacity means an assignment within an organization in which the employee primarily:

• Directs the management of the organization or a major component of function of the organization;
• Establishes the goals and policies of the organization, component, or function;
• Exercises wide latitude in discretionary decision-making; and
• Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

Executive capacity generally refers to the employee's ability to make decisions of wide latitude without much oversight. While an executive may manage a function within an organization, it should not be directly performed by an executive. If the function itself is performed by the intended executive, the position should be viewed as a staff officer or specialist, not as an executive. Generally executives would not have subordinate staff, except for personal staff. Generally, if the person controls and performs a function within an organization, but don't have subordinate staff except for a personal staff, classification in a specialized knowledge capacity is more appropriate.

In some cases applicants may find that Canada is as good as or even possibly better than the United States for them and their families. They have that option. For those who are set on settling in the USA, they will have exploited an option that brought them certainty, got their spouses out of the house and possible depression by getting them working and speeded up the resolution of their immigration concerns.

We would be pleased to speak to any applicants interested in pursuing this option.

Andy J. Semotiuk is a member of the bars of New York and California in the United States and Ontario and B.C. in Canada. He practices both U.S. and Canadian immigration law with Pace Law Firm. Andy can be reached at Andy@myworkvisa.com or by calling 416-236-3060