H-1B1 Status for Nationals of Chile and Singapore
As a result of the United States-Chile Free Trade Agreement Implementation Act (Pub. L. 108-77) and the United States-Singapore Free Trade Agreement Implementation Act (Pub. L. 108-78), both of which became effective on January 1, 2004, a new nonimmigrant classification is available to nationals of Chile and Singapore. This new classification is known as the “H-1B1”.
No Prior Petition Required
The employee applies directly to the U.S. Consulate rather than waiting for a petition to be approved by USCIS. According to §41.53 N28.2 of Title 8 of the Foreign Affairs Manual (“FAM”), an employer of an H-1B1 professional is not required to file a petition with United States Citizenship and Immigration Services prior to applying for a visa. Instead, the alien presents his or her application for classification as an H-1B1 directly to the consular officer at the time of visa application. To this extent, the H-1B1 classification is similar to the TN classification.
Annual numerical limits are set for aliens who may obtain H-1B1 visas. A total of 6,800 (1,400 professionals from Chile and 5,400 professionals from Singapore) H-1B1 nonimmigrants are allowed to enter the United States each fiscal year. However, nationals of Chile and Singapore are still free to apply under the regular H-1B classification.
The block of 6,800 H-1B1 numbers are taken from the existing annual numerical limit (currently 65,000) for H-1B aliens. At the end of each fiscal year, unused H-1B1 numbers will be returned to that year’s global numerical limit and will be made available to H-1B aliens during the first 45 days of the new fiscal year.
Only principal applicants (and not dependents) are counted against each country’s respective numerical limitation. Initial applications for H-1B1 classification, as well as the sixth and all subsequent extensions of stay, are counted against the H-1B1 annual numerical limitations.
The new H-1B1 category allows for the entry of nonimmigrant professionals in “specialty occupations.” The statutory definition of “specialty occupation” 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.”
The regulatory definition at 8 CFR §214.2 incorporates the language of the statute verbatim.
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. Alternative credentials will be accepted for Chilean and Singaporean nationals in the occupations of Disaster Relief Claims Adjuster and Management Consultant; such nationals may qualify for H-1B1 status with a combination of specialized training and 3 years experience in lieu of the standard degree requirements. For Chilean nationals only, Agricultural Managers and Physical Therapists can also qualify with a combination of a post-secondary certificate in the specialty and 3 years experience in lieu of the standard degree requirements.
Labor Condition Application (“LCA”) Requirement
Employers must submit a labor attestation for foreign workers under the H-1B1 program; the requirements are virtually identical to the labor attestation requirements in regular H-1B cases. The Department of Labor (“DOL”) must certify to the Department of State that the appropriate Labor Condition Application (“LCA”), ETA Form 9035 or ETA Form 9035E, has been filed with DOL. Further information regarding the LCA requirement appears in our H-1B article.
Once certified, the employer transmits a copy of the signed, certified LCA to the alien together with a written offer of employment. At the time of visa application, the alien will present a certified copy of the LCA, clearly annotated by the employer as “H-1B1 Chile” or “H-1B1 Singapore,” as proof of filing.
As in H-1B cases, LCAs are valid for a period of three years. An H-1B1 visa may not be issued for a period that exceeds the remaining validity period on the LCA.
Temporary Intent Required
Both free trade agreements permit the temporary entry of professionals under the H-1B1 classification. 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.” The alien must satisfy the consular officer that the proposed stay is temporary. A temporary period has a reasonable, finite end that does not equate to permanent residence. The circumstances surrounding an application should reasonably and convincingly indicate that the alien’s temporary work assignment in the United States will end predictably and that the alien will depart upon completion of the assignment. This concept is temporary entry is virtually identical to that applied in TN cases.
Despite the above language, 9 FAM §41.53 N28.5 states that an intent to immigrate in the future, which is in no way connected to the proposed immediate trip, need not in itself result in a finding that the immediate trip is not temporary. An extended stay, even in terms of years, may be temporary, as long as there is no immediate intent to immigrate. This more closely tracks the concept of dual intentapplicable to H-1B nonimmigrants.
H-1B1 nonimmigrant professionals are admitted for a one-year period renewable indefinitely, provided the alien is able to demonstrate that he/she does not intend to remain or work permanently in the U.S.
While classification as an H-1B nonimmigrant requires licensure, classification as an H-1B1 nonimmigrant professional does not require licensure. According to 9 FAM §41.53 N28.6, licensure to practice a given profession in the United States is a post-entry requirement subject to enforcement by the appropriate state or other sub-federal authority.
Proof of licensure to practice in a given profession in the United States may be offered along with a job offer letter, or other documentation in support of an application for an H-1B1 visa. However, 9 FAM §41.53 N28.6 states that admission/classification should not be denied based solely on the fact that the applicant does not already hold a license to practice in the United States. [Note: Aliens seeking classification as H-1B1 are subject to the INA §212(a)(5)(C) ground of inadmissibility for uncertified foreign health care workers.]
According to 9 FAM §41.53 N28.7, a special fee may be imposed for initial classification or certain extensions of stay as an H-1B1 worker, if such a fee is also required in the normal H-1B program. However, the Department of State is not currently imposing any special fees on H-1B1 visa applicants. The alien will simply pay the normal fees for a visa application (the Machine Readable Visa application fee and the reciprocity fee, if applicable).
However, if the alien is in the United States and seeks a change of status or extension of stay to H-1B1, additional fees will apply. USCIS confirmed that, after July 20, 2005, it would reject H-1B1 petitions filed without the H-1B fee mandated by the H-1B Visa Reform Act of 2004. This fee is $1,500.00 for businesses having 26 or more full-time workers and $750.00 for businesses having 25 or fewer full-time employees. However, the Fraud Prevention and Detection Fee, also authorized by the H-1B Visa Reform Act of 2004, will not apply to H-1B1 petitions.