Open work permits for H-1B visa holders and their family members

These instructions apply to IRCC employees. Given that applicants can’t submit their applications at a port of entry, the instructions don’t apply to border services officers.

The instructions on this page should be reviewed in conjunction with the following:

• Open work permit – General processing and issuance
• Conditions and validity period on work permits
• Study permits: Guidelines on minor children
• Study permits: Assessing the application

On June 27, 2023, IRCC launched Canada’s Tech Talent Strategy, consisting of new measures and improvements on existing measures to help businesses in Canada thrive in a competitive landscape. Highly skilled workers, particularly in occupations related to information technology (IT), are crucial to supporting and growing Canada’s innovation agenda.

As such, facilitating entry of certain H-1B visa holders into Canada serves to bolster Canada’s potential for economic growth by allowing employers to leverage a strong source of highly skilled labour.

On July 16, 2023, pursuant to section 25.2 of the Immigration and Refugee Protection Act (IRPA), the temporary public policy to exempt holders of certain American H-1B work visas from work permit requirements came into effect to facilitate access to open work permits for H­1B visa holders and their family members, who were residing in the United States (US) at the time of application.

This public policy expired on July 17, 2023, when the cap of 10,000 applications from principal applicants was received. Intake of new applications under the initial public policy is now closed.

On September 27, 2023, a complementary public policy came into effect to mitigate adverse impacts to clients who faced difficulties applying through the online application portal used for this measure. This public policy provides authority to

• process applications received in excess of the 10,000 cap if they were submitted after the expiration of the initial public policy on July 17, 2023, but prior to the closure of the online portal
• process applications of family members who applied for work permits following the expiry of the initial public policy and before September 27, 2024
• exempt minor children (age 17 and under) of H-1B visa holders from the $150 study permit processing fee after they arrive in Canada if they were issued an H-1B open work permit.

On December 16, 2023, an additional complementary public policy came into effect and expires on December 16, 2026. This public policy aims to

• facilitate the renewal of work permits for foreign nationals in Canada who were issued a work permit for less than 3 years, following facilitation under the first 2 H-1B public policies, to enable them to benefit from the full 3-year maximum of this work permit category (See: Extensions)

On this page

• Eligibility requirements for principal applicants (i.e. H-1B visa holders)
  • Eligibility requirements for family members
• Documentary evidence
• Application assessment
  • Identifying applications from family members
  • Proof of US residence
  • Accompanying minor children who applied for work permits
  • Study permit fee exemption for minor children issued H-1B work permits
  • Fees
• Final decision
  • Approval
  • Refusal
• Extensions
  • Eligibility requirements for principal applicants
  • Eligibility requirements for family members
  • Duration
  • Fees
  • Identifying work permit renewal applications under the H-1B category

Eligibility requirements for principal applicants (i.e. H-1B visa holders)

To be eligible under section A25.2, administrative code R02, the principal applicant must have

• submitted an open work permit application online (unless unable) between July 16, 2023, and July 17, 2023 (inclusive), where the duration of the work permit request is for a maximum of 3 years
• at the time the work permit application was submitted
  • held a valid H-1B specialty occupation visa and submitted a copy of that visa electronically (or by another means if unable to submit electronically)
  • resided in the US

Eligibility requirements for family members

To be eligible under section A25.2, administrative code R02, family members must

• have submitted an open work permit application online (unless unable) between July 16, 2023, and September 26, 2024 (inclusive), where the duration of the work permit request is for a maximum of 3 years
• be a family member (spouse or common-law partner, or dependent child as per subsection R1(3)) of a foreign national who has been found to meet the conditions listed in Part 1 of the initial H-1B public policy (summarized above in the eligibility requirements for principal applicants)
• have resided in the US when they submitted their work permit application

Documentary evidence

With the application for an open work permit, officers should be satisfied that they have the following documentary evidence to make an assessment:

1. proof that the principal applicant held valid H-1B status in the US when they submitted their work permit application, which includes either
   • a copy of the foreign national’s H-1B visa which was valid at the time of application;
   • or
   • if the foreign national’s initial H-1B entry visa already expired, a copy of their expired H-1B visa, and Form I-797/I797A/I797B, Notice of Action that indicates the foreign national still held valid H-1B status in the US at the time of their work permit application
     1. I-797, Notice of Action when issued to communicate approval of an application or petition
     2. I-797A, Notice of Action is issued as a replacement Form I-94 and also confirms approval
     3. I-797B, Notice of Action is issued by USCIS for approval of a non-citizen worker petition
   • Note: The principal applicant’s H-1B status in the US must have been valid when they submitted their own application, but does not need to remain valid when the family member applies.
2. evidence that the applicant resided in the US when they submitted their application
   • See: Proof of US residency.
3. payment receipt in the Proof of Fee Exemption slot (if applicable)
   • This is only applicable to clients required to use the workaround instructions to apply through their IRCC secure account. See Fees for more information.

In addition to the above, an application from a family member must also include either

1. evidence of a genuine relationship, if the applicant is the spouse or common-law partner
   • for example, (but not limited to) marriage certificate, Statutory Declaration of Common-Law Union (IMM 5409) or
2. evidence that the dependent child meets the definition of section R2
   • for example, but not limited to, birth certificate, adoption papers

Application assessment

Officers can use the following guidance to assess the work permit application.

Identifying applications from family members

The Global Case Management System (GCMS) automatically populates the Special Program Code field in H-1B work permit applications submitted via the IRCC portal:

• Principal applicants (i.e. H-1B visa holders): H1BP
• Family members: H1BF

Due to IT limitations, if a family member applies in the IRCC Portal for a study permit or temporary resident visa (TRV), the H-1B Special Program Code for family members is not automatically populated in GCMS, unless these applicants are applying in a group with an H-1B open work permit applicant.

To enable IRCC to identify all study permit and TRV applicants under the H-1B initiative, the following workaround is in effect.

Family members applying for study permits or TRVs through the IRCC Portal are instructed to enter the following in their application:

• Question: “Tell us more about what you’ll do in Canada”
• Answer: H1BF

In GCMS, this information appears in the “Travel Itinerary” field of the application.

Proof of US residence

Principal applicants and their family members must have resided in the United States (US) at the time they submitted their respective applications for an H-1B open work permit.

Considerations to assess residence

The intent of this public policy is to enable family members already residing together to continue to do so by allowing family members to accompany principal applicants to Canada.

For the purposes of this measure, a foreign national should be considered as having resided in the US at the time of the application if they were

• physically present and habitually residing in the United States; or
• physically present elsewhere in the world but have demonstrated an established habitual residence in the US, for example
  • the foreign national’s habitual country of residence is the US, but they are temporarily elsewhere on a short-term trip when they applied (e.g. on vacation, at a business conference), and intend to return to the US to their habitual residence
  • the foreign national’s primary habitual country of residence is the US, but they reside elsewhere on a short-term basis (e.g. they reside in another country during the summer, but live in the US the rest of the year)

The following are examples of applicants that do not meet the residence requirement:

• an applicant who is not in the US when they submitted their application and does not have a habitual residence in the US to which they can return
• a family member of an H-1B visa holder who is already living in Canada year-round, even if the H-1B visa holder resided in the US when the family submitted their applications (see section below on Residence of family members)
• a family member who resides year-round outside the US, even if the H-1B visa holder resided in the US when the family submitted their applications
• an H-1B visa holder who owns property in the US, but was not in the US when they submitted their application and has not been in the US for an amount of time that would be considered reasonable for an officer to determine that the US is their place of habitual residence (e.g. the applicant has not been in the US within the past year)
• an H-1B visa holder who is not physically present in the US when they submitted their application and has not entered the US using their H-1B visa

Examples of documentary evidence of US residence

Evidence that an applicant habitually resided in the US at the time of application can include, but is not limited to

• copy of a lease or rental agreement or property ownership
• a letter from a landlord or property owner attesting to the residence and specifying dates
• utility bills or any other bills in the applicant’s name that contain the applicant’s residential address
• proof of dependents enrolled at local elementary or high school
• an employment reference
• proof that they have financial ties in the country, such as a bank account or a credit card^{Footnote *}
• a valid driver's license in the state in which they live
• proof of active memberships in recreational or religious organizations in the US
• a statutory declaration stating they reside in the US^{Footnote *}

Officers may request further information from applicants, including additional forms of documentary evidence, if needed for their assessment of this eligibility criteria. This remains guidance only, and officers should exercise judgement and discretion in their decisions.

Residence of family members

Family members of H-1B visa holders do not automatically meet the eligibility requirements of this measure if the principal applicant meets all requirements. Each accompanying family member of an H-1B visa holder must be assessed based on their own respective merits.

Family members who already habitually reside in Canada, and did not reside in the US when they submitted their H-1B open work permit application, are not eligible under this public policy.

Family members already residing in Canada may be eligible to extend their stay as visitors, workers or students through existing measures (e.g. family members of foreign nationals in high-skilled occupations [LMIA exemption codes C41 and C46] or low-skilled occupations [LMIA exemption codes C47 and C48]).

Accompanying minor children who applied for work permits

Many minor applicants were unable to submit study permit applications when applying with H­1B work permit applicants due to technical issues. Many of those affected submitted work permit applications instead to ensure principal applicants could submit their H-1B work permit applications before the cap was met. These work permit applications submitted by minors are to be processed by IRCC.

Normally, minor children intending to study are required to apply for study permits prior to entering Canada. However, in fairness to clients affected by the aforementioned technical issues, minor children who meet the requirements to be issued an H-1B open work permit do not need to apply for a study permit prior to entering Canada.

As per subsection A30(2), minor children (other than a child of a temporary resident not authorized to work or study in Canada) are authorized to study at the pre-school, primary school or secondary school levels without a study permit.

To emphasize this authority to applicants, officers should include the following note on H-1B open work permits issued to minor children (age 17 and under):

Minor children, other than a child of a temporary resident not authorized to work or study, are authorized to study at the pre-school, primary or secondary school level, as per subsection 30(2) of the IRPA.

Study permit fee exemption for minor children issued H-1B work permits

As per the complementary public policy that came into effect on September 27, 2023, minor children who applied for an H-1B work permit under the initial public policy and are now in Canada may be eligible for a study permit fee exemption. This is in response to technical issues that may have impacted their ability to apply for a study permit when applying with the principal applicant.

The Centralized Network will be responsible for processing these applications.

To be eligible for an exemption from the study permit processing fee ($150), the child must meet the following requirements:

• they are 17 years old or under
• they are a family member (as per subsection R1(3)) of an H-1B visa holder who has applied and been found to meet the conditions listed in Part 1 of the initial H-1B public policy to be issued an open work permit as the principal applicant
• they submitted an application for an open work permit as a family member of an H-1B visa holder between July 16, 2023, and July 17, 2023 (inclusive) and
• they were in Canada when they submitted their study permit application under section R216

To ensure officers can identify clients seeking to benefit from the fee exemption, minor children are asked to self-identify for this measure in their Application to Change Conditions, Extend my Stay or Remain in Canada as a Student (PDF, 895 KB) form [IMM 5709] by entering the following in the “Coming into Canada” section:

• Question 2a) The original purpose for coming to Canada:
  • Applicant instructed to select “Other”
• Question 2b) Other:
  • Applicant instructed to enter “H1BF”

This information is populated in GCMS as an entry in the Notes tab of the application.

To identify the waived fee, officers must enter the following information:

• Cost recovery fee exemption code: 999
• Special program code: H1BF

Minor children must still meet all other requirements to obtain a study permit. For more information, see:

• Study permits: Guidelines on minor children
• Study permits: Assessing the application

Fees

All foreign nationals applying for an open work permit under this public policy and its complementary public policies are required to pay the work permit processing fee ($155), but are not required to pay the open work permit holder fee of $100, as work permit applicants under a public policy are not referenced in subsection R303.2(1).

Applicants’ instructions can be found at: H-1B visa holder work permit.

Final decision

Approval

The work permit will be issued under the authority of section R200 following facilitation under section A25.2.

In GCMS on the Application screen, officers should enter the information below in the specified fields.

Refusal

If an officer has determined that the applicant does not meet the eligibility requirements, they should record their reasons for decision as per the instructions in: Decision making: Standard of review and process for making a reasonable decision.

Extensions

As per the complementary public policy that came into effect on December 16, 2023, under the authority of section A25.2, foreign nationals may be eligible for a work permit renewal under section R201 for the remainder of the 3-year maximum, if their initial H-1B work permit was issued for less than 3 years (due to the validity of their passport or the validity of their biometrics, if applicable).

The Centralized Network will be responsible for processing these applications.

Eligibility requirements for principal applicants

To be eligible for the section A25.2 public policy, administrative code R02, principal applicants must

• have submitted an application online (unless exempt) to renew their H-1B open work permit under section R201 between December 16, 2023, and December 16, 2026 (inclusive)
• currently hold an open work permit issued under the initial public policy, or the subsequent public policy that came into effect on September 27, 2023, as the holder of a valid H-1B visa
• the aforementioned open work permit is valid for less than 3 years and
• have resided in Canada when they submitted their application under section R201 to renew their current open work permit for the remainder of the 3-year maximum duration offered under the H-1B public policies

Eligibility requirements for family members

To be eligible for the section A25.2 public policy, administrative code R02, family members must

• be a family member (spouse or common-law partner, or dependent child as per subsection R1(3)) of a principal applicant that meets the requirements to be issued a renewal of their open work permit under the H-1B category
• have submitted an application online (unless exempt) to renew their H-1B open work permit under section R201 between December 16, 2023, and December 16, 2026 (inclusive);
• currently hold an H-1B open work permit issued under the initial public policy, or the subsequent public policy that came into effect on September 27, 2023, as the family member of an H-1B visa holder
• the aforementioned open work permit is valid for less than 3 years and
• have resided in Canada when they submitted their application under section R201 to renew their current open work permit for the remainder of the 3-year maximum duration offered under the H-1B public policies

Duration

Officers should issue work permit renewals as per the following instructions:

Principal applicants:

• up to 3 years from the date of issue of their initial H-1B public policy work permit (i.e. from the start of their initial H-1B public policy work permit’s validity)
• until the expiry of the principal applicant’s passport or travel document or
• if they are exempt from obtaining biometrics as per the 1 in 10 rule, until the expiry of the principal applicant’s current biometrics, whichever is earlier

Family members:

• issued for a period that ends no later than the period of authorized stay of the principal applicant
• until the expiry of the family member’s passport or travel document or
• if they are exempt from obtaining biometrics as per the 1 in 10 rule, until the expiry of the family member’s current biometrics, whichever is earlier

Other than the “Duration” field, when approving H-1B work permit extension applications, officers should enter the information specified in the Approval section above in GCMS on the Application screen.

Fees

The same fee requirements apply to clients applying for initial work permits as those applying for work permit renewals. This includes not being required to pay the $100 open work permit holder fee.

As well, H-1B extension applicants are instructed to pay their fees before applying and to upload a copy of their receipt with their application submitted through their IRCC secure account.

Refer to the Application assessment – Fees section above for more details.

Identifying work permit renewal applications under the H-1B category

Officers should verify that an applicant’s previous work permit was issued under the H-1B category by reviewing the special program code.

The previous work permit application should also include a note indicating that the work permit was issued for less than 3 years (see instructions for the “Duration” field under the Approval section above).

Applicants are instructed to self-identify under the H-1B category in their Application to Change Conditions, Extend my Stay or Remain in Canada as a Worker (PDF, 600KB) form [IMM 5710] by entering the following:

• Principal applicants are instructed to
  • enter “H1BP” in the “Job Title” field
    • In GCMS, this information appears in the “Intended Occupation” field of the application.
• Family members are instructed to
  • enter “H1BF” in the “Job Title” field
    • In GCMS, this information appears in the “Intended Occupation” field of the application.
  • enter the application number of the principal applicant’s work permit renewal application in the “Brief description of duties” field
    • In GCMS, this information appears as an entry under the Notes of the application.
    • This information should assist officers with associating family member applications to the principal applicant’s application.

Related links:

Open work permits for H-1B visa holders and their family members