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The Canadian Solution for Bypassing the Employment Based Quota System

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You are a H-1B visa holder from a country with a backlogged employment based category and you are currently living and working in the United States. You have applied for permanent residence through your employer. You have been working for the same employer for years and have extensive experience in your field. Despite all of these factors, you are still waiting in line for your priority date to become current, and what’s more, your spouse has not been eligible to apply for their employment authorization due to the restrictions on their visa. What, if anything, can be done to receive your permanent resident card sooner?

Thousands of immigrants are in the same hypothetical situation. Comprehensive Immigration Reform is necessary not just for undocumented immigrants living in the United States, but also for such specialty workers who regularly contribute to our economy and society, but are stuck in limbo awaiting their permanent residency. Comprehensive immigration reform is also necessary because specialty occupation workers often run out of their H-1B status while they are in line for their priority date to become current. If the specialty occupation worker is married, chances are their spouse has not had the opportunity or privilege to legally obtain employment while the primary applicant has been in line waiting to adjust their status. Many immigrants who have found themselves in similar situations fear international travel due to the risk they may run in not being able to return to the United States.

Bypassing the Quota System

What can such workers do to improve their situation while awaiting their permanent residency? You can opt to request that your employer send you to work in Canada for a period of up to one year, supposing your company has an office operating in Canada, where you can perform the same or similar work that you are currently performing within the United States.

This option would enable the worker to:

  • Travel between Canada and the United States for employment purposes
  • Your spouse would be able to receive an immediate blanket permit which would allow them to work in Canada.
  • Specialized knowledge workers could transfer back to the United States on an L-1B visa and wait for their priority date to become current for up to a period of five years. This move would allow the spouse of an L-1B applicant to obtain an Employment Authorization Card as an L-2 visa holder, a privilege not available to an H-4 Spouse.
  • Managers or executives would receive more benefits. Such managers or execs who have worked in Canada for at least one year could opt to return to the United States on an L-1A inter-corporate transferee visa and switch their preference status to an EB-1 first preference category, reducing their wait time for permanent residence significantly.

For advice on strategy and for a legal consultation please contact our office.