There has been much discussion among U.S.-based employers and employees about the immigration options for highly skilled workers being offered by Canada. While there have always been paths for skilled workers to seek temporary work authorization in Canada, recent expansions to Canadian immigration programs promise new opportunities for U.S. employers seeking to retain critical foreign talent, including H-1B employees who are reaching their max-outs while still traversing the long green card application process and F-1 employees who were not selected in the increasingly competitive H-1B lottery.
Canada’s Tech Talent Strategy was announced by Canada’s Minister of Immigration on June 27, 2023, and outlined the nation’s plans to attract more highly skilled workers in the tech industry. While the exact details of these developments are yet to be released, Minister Sean Fraser indicated four key tenets in Canada’s planned immigration strategy:
- Developing a new Innovation Stream under the existing International Mobility Program for any foreign national who (a) has been offered employment by a Canadian employer that has been identified as contributing to the country’s industrial innovation goals, or (b) is a highly skilled worker in select in-demand occupations to be defined by the Canadian government.
- Establishing immigration options for “digital nomads,” who are individuals working remotely for foreign employers.
- Creating a streamlined work permit for H-1B visa holders in the U.S., capped at 10,000 applicants.
- Improving existing immigration programs that benefit workers in high-skilled tech occupations.
These expanded immigration benefits are projected to assist the Canadian tech sector in filling existing jobs and provide incentives and opportunities for new businesses and job creation in Canada. Klasko Immigration Law Partners can help your employees explore global immigration options through our network of trusted colleagues in the Alliance of Business Immigration Lawyers. Attorney Avi Gomberg of Montreal firm Gomberg Dalfen S.E.N.C. is one such colleague with a history of assisting KILP clients on an array of Canadian immigration matters.
Attorney Gomberg states: “These June 27th announcements by the Government of Canada signal Canada’s enthusiasm for global tech talent and foresight in encouraging such talent to relocate to Canada.” Attorney Gomberg has also said there are other Labour Market Impact (LMIA) exempt and LMIA options that may allow short-term placement in Canada through a Canadian subsidiary.
Attorney Gomberg further outlines the three existing Canadian immigration programs that benefit workers in high-skilled tech occupations:
- Intracompany transferee visas, requiring sponsorship from a Canadian employer and a qualifying corporate relationship with the candidate’s foreign employer;
- Reciprocal employment visa, whereby foreign workers become eligible for employment in Canada when Canadians are offered similar reciprocal opportunities abroad; and
- Labor Market Impact Assessments for nonimmigrant visa status, which normally require a test of the labor market, similar to the PERM process in the U.S. In the case of skilled tech industry workers, the Canadian Global Talen Stream for most IT occupations does not require a test of the labor market but instead requires the employer to enter into a “Labor Market Benefits Plan” with the Government of Canada.
Each of these existing mechanisms for attracting skilled workers to Canada requires sponsorship by a Canadian employer and several months of preparation and government adjudication before the process can be completed.
Ongoing Roll-Out
To date, the Canadian government has provided details of and opened applications for one of the key tenets of the new immigration strategy—the Open Work Permit program for U.S. H-1B visa holders. The visa application process opened on Sunday, July 16 allowing individuals who are currently in the U.S. with H-1B visa status to apply for open work authorization, meaning those who receive these visas will have authorization to live and work in Canada, whether they are working for a Canadian employer or working remotely for their U.S.-based employers. These visas have been capped at 10,000 applicants, and this cap was reached by the end of the day on Monday, July 17, less than 48 hours after the process was opened. Depending on the success of this program, we may see additional opportunities for the Open Work Permit program in the future, but such plans have not been confirmed by the Canadian government.
The full details and mechanisms for the remaining tenets of the Tech Talent Strategy are yet to be announced, but they are expected to receive similar demand from skilled workers seeking to enter Canada.
Canada’s Tech Talent Strategy for U.S. Employer Benefits
Employers with a presence in both the U.S. and Canada will be able to take advantage of both the Canadian Innovation Stream and streamlined Canadian work permits for H-1B visa holders (assuming the cap is expanded at a later date). When an employee of one of these multinational corporations is employed in the U.S. pursuant to an F-1 or other nonimmigrant visa with limited options to extend the work authorization and that employee has exhausted all opportunities to register for the H-1B lottery without success, these corporations may take advantage of these expanded opportunities for Canadian work authorization to temporarily relocate the employee to their offices in Canada. Then, they may continue to register the employee in the annual H-1B lottery until they are selected and able to return to the U.S. with H-1B visa status.
While multinational corporations stand to benefit most from these new Canadian immigration policies, smaller companies without operations in Canada will have some opportunity to retain their skilled workers who have not yet had success in the H-1B lottery. Both the Open Work Permit program for U.S. H-1B visa holders and the new Canadian digital nomad visa will not require sponsorship from a Canadian employer. Instead, the employee would be eligible to apply for this temporary status based on their continued employment with the U.S. employer so long as their role can be performed remotely from outside of the U.S. The digital nomad visas will provide short-term eligibility for employees to temporarily relocate to Canada while continuing to work for the U.S. employer. The employer may then register the employee for subsequent H-1B lotteries to facilitate the employee’s return to the U.S. As stated, the Canadian nomad visa will be issued for up to six months at a time but may be expanded depending on the success of the program. In general, utilizing nomad visas to continue U.S. employment from abroad should be the last resort in a company’s immigration strategy, but can be a valuable tool to retain highly qualified talent in the U.S. labor market.
In the U.S., foreign nationals seeking employment in the tech sector face two key difficulties in the pursuit of work authorization and permanent residence in the U.S. First, recent graduates from U.S. universities entering the workforce in F-1 visa status have up to three years of employment in F-1 status before they must either change status to a different nonimmigrant visa status or depart the U.S. Increased demand for the 85,000 new H-1B visas allocated every year have significantly reduced the likelihood of selection in the annual H-1B lottery (from roughly 70% success rate in the Spring 2013 lottery to roughly 11% success rate in the Spring 2023 lottery). Secondly, those employees who have been selected in the H-1B lottery and have assumed H-1B status are on a tight timeline to complete the lengthy green card application process and secure AC21 eligibility to extend H-1B status indefinitely before they reach the initial 6-year max-out.
While foreign immigration options remain the strategy of last resort for U.S. employers developing immigration strategies for highly-skilled foreign talent, these immigration reforms are a promising opportunity for continued participation in the employer’s workforce, if no U.S. immigration options remain for that employee.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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