H-1B1 Visa (for nationals of Singapore and Chile in a specialty occupation)
The H-1B1 visa is a variant of the H-1B nonimmigrant visa and is only available to nationals of Singapore and Chile. The H-1B1 visa allows Singaporean and Chilean citizens to live and work in the United States temporarily, but only if they are hired for a job that is considered a “specialty occupation.” The definition of “specialty occupation” is identical to the regulatory definition for H-1Bs: The occupation requires theoretical and practical application of a body of specialized knowledge; and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as minimum entry into the occupation. The H-1B1 category, which took effect January 1, 2004, was created by the Free Trade Agreements signed with Singapore and Chile in 2003 (United States-Singapore Free Trade Agreement and the United States-Chile Free Trade Agreement, respectively). Of the 65,000 visas allocated to the capped H-1B visa program, a total of 6,800 are reserved for use for the H-1B1 program: 5,400 for Singapore and 1,400 for Chile. The 6,800 available H-1B1 visas each fiscal year can be an excellent alternative to the H-1B visa for citizens of those countries.
Difference between H-1B and H-1B1:
- One crucial difference between the H-1B and H-1B1 visas is the foreign national’s intent for coming to the United States. The H-1B1 visa is a single intent visa, and therefore is not protected under the Dual Intent Doctrine. The concept of “dual intent” allows H-1B professionals to enter the U.S. while simultaneously seeking lawful permanent resident status (green card status). The H-1B1 visa applicant, however, has to demonstrate that s/he does not intend to immigrate to the United States. Thus, H-1B1 beneficiaries may not pursue permanent residence in the United States while in H-1B1 status.
- A second major difference is that the H-1B visa requires pre-approval from the United States Citizenship and Immigration Services (USCIS), meaning the sponsoring employer must file an I-129 Petition for Non-immigrant worker. The I-129 petition asks the USCIS to approve the employer’s offer of employment and allow the foreign worker to apply for an H-1B visa at the U.S. Embassy or Consulate (if the foreign worker is coming from abroad) or to change and/or extend the person’s immigration status (if the foreign worker is already in the United States). The H-1B1 visa applicant, however, is not required to submit an I-129 for pre-approval, thus streamlining the application process and making it less complex. The Free Trade Agreements signed with Singapore and Chile permit the foreign worker to apply for the visa directly at a U.S. Embassy or Consulate abroad by submitting proof of having filed a Labor Condition Application (LCA) and by having a written offer of employment. The only instances where an I-129 is necessary are where foreign worker applies for a change of status, extension of status, or from one H-1B1 employer to another.
- A third difference is that the I-94 (Arrival-Departure Record) for H-1B1 visa holders is valid for a maximum of 12 months, whereas the I-94 for H-1B visa holders is valid for up to 3 years. If the employer wants to keep the H-1B visa holder past the three years, the foreign worker should be able to apply for an “extension of status” with the USCIS. Upon approval, USCIS will issue a new I-94. It’s advisable to submit the application at least three months before the I-94 expiration date.
Aside from these differences, the requirements for the H-1B1 visa are largely identical to those of the H-1B visa. The H-1B1 visa entitles the holder to work in the United States temporarily; only for the duration of the applicant’s job assignment. This means that so long as the applicant is performing his/her job duties in a specialty occupation, the applicant may remain in the United States.
Spouses and Children:
The spouse and minor children of an H-1B1 employee are authorized to live in the United States in H-4 status. They may accompany or join the principal visa holder in the United States for the duration of his/her stay. Accompanying spouses and children are entitled to study in the United States, but usually are not permitted to work (with some exceptions).
REQUIREMENTS for H-1B1 visa:
The H-1B1 visa applicant must have a job offer in a professional position that requires, at a minimum, a bachelor’s degree in the field of specialization. The occupation for which the H-1B1 classification is sought must also normally require a bachelor’s degree as a minimum for entry into the occupation.
To qualify for H-1B1 visa:
- The applicant must be a citizen of Chile or Singapore;
- The position offered must be in a specialty occupation; that is, it requires theoretical and practical application of a body of specialized knowledge, the attainment of which is generally gained through a bachelor’s degree or higher, or its equivalent, in the specific specialty, as a minimum for entry into the occupation;
- The applicant must have attained a post-secondary degree, or its equivalent, involving at least four years of study in your field of specialization;
- The applicant must meet the definition of “specialty occupation” as it is outlined in the respective country’s Free Trade Agreement or the applicant may submit proof of alternative credentials;
- The applicant is expected to comply with all licensure requirements (if applicable) following their admission into the U.S. The applicant may be admitted into the United States without a license in the designated field;
- The applicant will be employed by a U.S. employer.
NOTE: The H-1B1 visa does not allow the visa applicant to be self-employed or to be an independent contractor.
Specialty Occupation Defined:
The statutory definition of “specialty occupation” for the H-1B1 visa category is found at INA §214(i)(3) and is defined as an occupation that requires:
- Theoretical and practical application of a body of specialized knowledge; and
- Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”
This definition is almost identical to the definition of specialty occupation for regular H-1B nonimmigrants [contained at INA §214(i)(1)], except that it refers to “a body of specialized knowledge” instead of “a body of highly specialized knowledge.”
Although the normal minimum requirement for H-1B1 status is a bachelor degree in the specific specialty, both free trade agreements permit alternative credentials in certain professions, thus making the H-1B1 visa available to some applicants who would not otherwise qualify for an H-1B visa for lack of a bachelors’ degree or the equivalent.
Alternative credentials will be accepted from Singaporean and Chilean applicants having a combination of specialized training and 3 years experience [in lieu of the standard degree requirements] in the occupations of:
- Disaster Relief Claims Adjuster; and
- Management Consultant.
Alternative credentials will be accepted from Chilean applicants having a combination of a post-secondary certificate in the specialty and 3 years experience [in lieu of the standard degree requirements] in the occupations of:
- Agricultural Managers; and
- Physical Therapists.
Like most other treaty based visas (including the E-1, E-2, E-3, and TN), the applicant does not have to have a petition approved by the United States Citizenship and immigration Services (USCIS) before applying for an H-1B1 visa. The employer does not have to submit Form I-129, Petition for Nonimmigrant worker, to the USCIS, and the applicant does not need to obtain a Notice of Approval, Form I-797, before submitting their visa application. The applicant can apply for the H-1B1 visa directly at the U.S. Consulate in Singapore or Chile.
Starting the H-1B1 application process from abroad:
- File and obtain a certified Labor Condition Application (LCA) from the U.S Department of Labor (DOL).
- The I-129 Petition for a Non-immigrant Worker is Generally Not Required: Due to the treaty between the United States and Singapore and Chile, the I-129 (Petition for a Non-immigrant worker) generally is not required for aliens interested in applying for the visa. Usually, the alien may apply for the visa directly at a U.S. consulate abroad by submitting proof of having filed a Labor Condition Application (LCA) and by having a written offer of employment. However, in instances where the alien applies for a change of status, extension of status, or from one H-1B1 employer to another, an I-129, LCA, and Data Collection Supplement are necessary.
- Labor Condition Application (LCA): An LCA must be filed with the U.S. Department of Labor (DOL) and should be annotated as either, “H-1B1-Chile” or “H-1B1-Singapore.” The U.S. employer must obtain a certified Labor Condition Application (LCA) from the DOL. The LCA is required as a means to attest that the H-1B1 employee will be paid the prevailing wage for the work being performed, and that the employment of the foreign worker will not adversely affect the working conditions of similarly employed U.S. workers.
- Complete the online nonimmigrant visa application, Form DS-160: After the H-1B1 Petition is approved, the H-1B1 visa applicant should file the Form DS-160, Application for Nonimmigrant Visa, with a nearby U.S. Consulate
- Submit the DS-160 electronically (via the Internet) to the Department of State, and print out the application form confirmation page to bring to your interview. The online DS-160 (https://ceac.state.gov/genniv/) can be accessed at the Consular Electronic Application Center website.
- Upload a digital photograph while completing the online Form DS-160. Please refer to photograph requirements (https://travel.state.gov/content/visas/en/general/photos/frequently-asked-questions.html) for detailed guidance.
- Pay the non-refundable non-immigrant visa application (MRV) fee of US$190.
- A Reciprocity Fee may apply, depending on the applicant’s country of citizenship. Check the U.S. State Department’s Reciprocity Information (http://travel.state.gov/content/visas/english/fees/reciprocity-by-country.html) webpage for details.
- Schedule an interview: The next step is to schedule an interview with the U.S. Embassy or Consulate in the country where applicant lives
- Wait times (https://travel.state.gov/content/visas/en/general/wait-times.html/) for interview appointments vary by location and season, which can be anywhere from a few days to 2 weeks;
- USCIS will also notify the U.S. Consulate of the applicant’s choice and send the Consulate a complete copy of the file;
The Consular Interview: After the visa petition is approved, the foreign national has to submit his/her application for an H-3 Trainee visa to the U.S. Embassy or Consulate. The applicant must bring the following documents to the H-3 visa interview:
Letter of Employment:
- Job letter from your U.S. employer specifying the details of the temporary position (including job responsibilities, salary and benefits, duration, description of the employing company, qualifications of the applicant, etc.) and confirming the job offer; Certified form ETA 9035 or 9035E from the DOL provided by the employer;
- Passport must be valid for travel to the United States with minimum validity of six months beyond the intended period of stay in the United States;
- Must present if married and traveling to the U.S. with spouse;
- Long form birth certificate for the applicant and each accompanying relative;
- The H-3 visa applicant must submit proof of employment on return to their home country or other foreign destination upon completion of the training program;
- Applicant must have already submitted an online electronic application form, DS-160, Non-Immigrant Visa Electronic Application; and
- The applicant must bring print out the confirmation page containing the bar code and bring this page to the visa interview. It is no longer necessary to provide a printed application form to the Consular Officer during the visa interview;
Non-immigrant Visa Application (MRV) Fee Receipt:
- The applicant must pay the application fee and bring receipt to the interview.
Starting the H-1B1 application process while in the U.S.:
If there is a change of employer, the new employer will need to file an I-129 and LCA.
- File and obtain a certified Labor Condition Application (LCA) from the U.S Department of Labor (DOL);
- File H-1B1 petition with USCIS;
- The applicant must stay in U.S. during the application period while waiting for the I-797A Approval Notice, which takes approximately 2 months.
NOTE: If the foreign national has an accompanying spouse or children, the sponsoring U.S. employer must file a separate Form I-539, Application to Extend or Change Nonimmigrant Status on their behalf. The I-539 must be submitted before the expiration date on the applicant’s Form I-94, Arrival-Departure Record.
Spouses and Children:
The spouse and minor children of an H-1B1 employee are authorized to live in the United States in H-4 status, and to study, but are not permitted to work.
- The agreements with Singapore and Chile provide for the temporary entry of professionals into the United States. The term “temporary entry” is defined in both free trade agreements as “an entry into the United States without the intent to establish permanent residence.” Therefore, a person in H-1B1 status, who files for permanent residence (commonly referred to as a “green card”) may endanger his/her continued H-1B1 status;
- If the H-3 visa holder applies for a change of status for a job, the employer will need to file Form I-539, Application to Extend or Change Nonimmigrant Status, for the spouse and/or children;
- There is no premium processing for H-1B1 visas.
Issues of Intent:
- Unlike H-1B and L visas, H-1B1 visas are considered single intent, not dual intent visas;
- In order to be issued an H-1B1 visa/status, the applicant bears the burden of proving that s/he has non-immigrant intent by showing that s/he:
(1) has a residence abroad;
(2) has no immediate intention of abandoning that residence; and
(3) intends to depart the U.S. upon the termination of the visa; and
(4) will have a job waiting upon returning to his/her home country.
- Singapore and Chile Permanent Residents who are citizens of other nations are not eligible for the H-1B1; and
- The H-1B1 visa does not allow the visa applicant to be self-employed or to be an independent contractor
Medical Doctors and the H-1B1 Visa:
Again, as with the H-1B visa status, generally, physicians from Singapore and Chile may be granted H-1B1 status only if their employment involves research and teaching, with any patient care incidental to such duties. The bar on rendering patient care has been eliminated for physicians with an appropriate state license, and who have passed the FLEX examination or USMLE Parts I, II, and III and ECFMG English test, if applicable.
Admission on an H-1B1 visa is generally valid for one year. Extensions can be granted in 1-year increments. Unlike the regular H-1B visa, there is no six-year limitation for those admitted on an H-1B1, and the number of renewals is indefinite, provided the visa holder is able to demonstrate that s/he does not intend to remain or work permanently in the U.S. However, every third extension will require a new 2-year LCA because, after the second extension, the next extension may only be granted if the Secretary of Labor certifies that the intending employer has filed a new 2-year LCA.
Although the H-1B1 visa is valid for 18 months, admission as an H-1B1 nonimmigrant is generally authorized for 1 year (Form I-94). The validity of an H-1B1 visa (the sticker in the passport) refers to the time in which an applicant may apply to enter the U.S. at a port of entry for admittance into the U.S. The 18-month H-1B1 visa sticker in the passport has no bearing on the length of time for which the alien may be admitted.
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