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IMMIGRATION JULY 14, 2023 | The Indian Eye 34

Canada Announces New Program for

Holders of U.S. H-1B Visas – But Do They

Mean Visas, or H-1B Nonimmigrant Status?

DAVID ISAACSON dian work permit, and study attractive to many as well, H-1B visa as such. pired, may nevertheless be
or work permit options for particularly those whose H-4 Under section 248 of the in valid H-1B nonimmigrant
n a news release on June their accompanying family spouses would not be eligi- Immigration and Nationality status. But if such a person
27 issued following re- members”. ble for an Employment Au- Act (INA), also known as 8 does not travel outside the
Imarks at the Collision This program and oth- thorization Document in the U.S.C. § 1258, and the regu- United States during the pe-
2023 conference, Canada’s er parts of the Tech Talent United States. Some import- lations at 8 C.F.R. Part 248, riod of the extension, they
Minister of Immigration, Strategy have already at- ant details, however, remain someone who has been ad- need not get a new H-1B
Refugees and Citizenship, tracted significant media at- unclarified. mitted to the United States visa.
Sean Fraser, announced sev- tention. An open work per- One such detail is the as a nonimmigrant may ap- Nor are these the only
eral new measures as part mit, allowing employment question of exactly who ply to change status to a dif- ways that it is possible to
of “Canada’s first-ever Tech by any employer in Canada will be eligible for the new ferent type of nonimmigrant be in valid H-1B status but
Talent Strategy.” One that rather than the specific spon- program. According to the while still within the United not have a valid H-1B visa.
will likely be of interest to sor required in the United announcement, “The new States. According to 22 C.F.R. §
many foreign workers in the States for an H-1B, may be H1-B specialty occupation This process does not 41.112(a), “The period of
United States is “the cre- an attractive prospect for visa holder work permit will require obtaining a new non- visa validity has no relation
ation of an open work per- many H-1B visa holders. be available as of July 16, immigrant visa. A new visa is to the period of time the
mit stream for H-1B special- The availability of work per- 2023. Approved applicants only required if the person immigration authorities at a
ty occupation visa holders in mits for accompanying fam- will receive an open work wishes to leave the United port of entry may authorize
the US to apply for a Cana- ily members is likely to be permit of up to three years States and re-enter in their the alien to stay in the Unit-
in duration, which means new nonimmigrant status. ed States.” Rather, as that
they will be able to work (Even then, someone mak- same regulation explains,
for almost any employ- ing a brief trip to Canada or “The period of validity of a
er anywhere in Cana- Mexico of less than 30 days, nonimmigrant visa is the pe-
da. Their spouses and who has changed status, can riod during which the alien
dependants will also be sometimes utilize their old may use it in making appli-
eligible to apply for a visa under a process known cation for admission.” And
temporary resident visa, as automatic visa revalida- that period is often defined
with a work or study tion, pursuant to 22 C.F.R. § by “reciprocity”, that is, the
permit, as needed.” The 41.112(d)(1)-(2).) time period for which a sim-
backgrounder issued by Thus, someone who en- ilar visa would be issued to a
Immigration, Refugees tered the United States with, U.S. citizen by a particular
and Citizenship Canada for example, an F-1 student foreign country. The State
(IRCC) also refers to visa, and has never left the Department’s reciprocity
“H-1B specialty occupa- United States since then, schedule for the People’s
tion visa holders in the may have changed their sta- Republic of China, for exam-
US,” at more than one tus to H-1B, and may have ple, indicates that an H-1B
point. Read literally, been issued a Form I-94 visa will only be issued for 12
this would suggest that acknowledging their H-1B months.
one will need to possess status as part of the approv- Thus, if a Chinese cit-
an H-1B visa stamp in al notice of their application izen is issued an H-1B visa
order to obtain the new for change of status, but may valid for one year because
m of Canadian open work not have an H-1B visa. of this reciprocity schedule,
Even if someone did but has an approved H-1B
CYRUS D. MEHTA & PARTNERS PLLC permit. come to the United States petition valid for three years,
Not all H-1B non-
immigrants in the Unit- with a valid H-1B visa at he or she may be admitted

ed States, however, will some point in time, regula- in H-1B status until the end
hold a valid H-1B visa tions at 8 C.F.R. § 214.1(c) of the three years of petition

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­ stamp, or any H-1B visa allow for an extension of stay validity, despite having a visa
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stamp at all (even an as a nonimmigrant beyond that will expire sooner than
expired one). Rather, the period of initial admis- that. Even during the latter
there are multiple cir- sion. In this way, as well, part of this initial admission,
cumstances under which someone whose H-1B visa, such a person will have H-1B
2 6th Floor one can be in H-1B sta- and initial period of H-1B status but no H-1B visa.
tus, but not possess an admission, have already ex- It is not clear why IRCC

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