Similar to its H-1B counterpart, the H-1B1 is a non-immigrant visa that is designed to allow U.S. employers to recruit and employ foreign professionals in specialty occupations to work in the United States for a specified period of time. The H-1B1 subcategory was established as a result of the U.S.-Chile Free Trade Agreement and the U.S.-Singapore Free Trade Agreement and is designated for workers in a “specialty occupation” from Chile and Singapore. Currently, the definition of “specialty occupation” is identical to the regulatory definition for H-1Bs, meaning that an 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. [8 C.F.R. 214.2]

While the H-1B1 visa tends to follow the same guidelines as does a general H-1B, there are some special circumstances that relate to the H-1B1. One of the main differences between the H-1B and H-1B1, is that although the normal minimum requirement for an H-1B is a specialized bachelor’s degree, the trade agreements with Chile and Singapore permit alternate credentials in certain professions: agricultural managers and physical therapists (for Chilean workers) and management consultants and disaster relief claims adjusters (for Chilean or Singaporean workers).

Furthermore, there are specific criteria and requirements that regulate whether an applicant will be considered eligible for an H-1B1 Visa:

Application Requirements:

• In order to qualify, the applicant must first 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 must also submit a job offer letter from the employer, proof of labor attestation (certified from ETA 9035 or 9035E, Labor Condition Application), proof of payment of any special fee (if applicable), proof that his/her stay in the U.S. will be temporary, and pay the Machine Readable Visa(MRV) fee. [9 FAM 41.53 N27.8] Special Note: Aliens who are already in the U.S. as non-immigrants may apply to the DHS for a change of non-immigrant status to H-1B1 pursuant to INA 248. Such an alien who departs the United States would need an H-1B1 visa to seek readmission as an H-1B1.

Once the general application requirements are met, there are other criteria that need to be taken into consideration as well:

• The I-129 Petition for a Non-immigrant Worker is Generally Not Required: Due to the treaty between the United States and Chile and Singapore, 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. [9 FAM 41.53 N.27.2 & 27.8]
• Licensure is not a Required Prerequisite:While an alien may be admitted into the United States without a license in the designated field, he/she is expected to comply with all licensure requirements (if applicable) following their admission into the U.S.
• Labor Condition Application (LCA): An LCA must be filed with the Department of Labor and should be annotated as either, “H-1B1-Chile” or “H-1B1-Singapore.” 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. [20 C.F.R. 655.700(d)(3)]
• The Portability Rule:The portability rule, as stated in the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) allows an employee to change employers and start work with the new employer on the date USCIS receives the transfer petition submitted on behalf of the beneficiary by the new employer. However, under the provisions listed in INA 214(n), the portability rule is not applicable to H-1B1 holders.
• Numerical Limitations: The Free Trade Agreements allow for no more than 1,400 professionals from Chile and 5,400 professionals from Singapore to enter the United States annually; these limitations are set aside within the overall H-1B program cap.[9 FAM 41.53 N27]

One Year Admission

Admission on an H-1B1 visa is generally valid for one year. Extensions can be granted in one-year increments and 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. It should be noted, however, that 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. [9 FAM 41.53 N27.5]

Change of Status to H-1B1

A national of either Chile or Singapore, who is currently in the United States as a non-immigrant in a category that is eligible for a change of status, may apply for a change of status to H-1B1 non-immigrant status. In these instances, the alien must use Form I-129, accompanied by:

• A letter from the U.S. employer stating the activity to be engaged in, the anticipated length of stay, and the arrangements for remuneration;
• Evidence that the alien meets the educational requirement for the profession, which is normally a bachelor’s degree or higher. However, there are four exceptions to the degree requirements. The exceptions are: for Chilean citizens, agricultural managers and physical managers; for Singaporean citizens, Management Consultants and Disaster Relief Claims Adjusters; and
• A U.S. Department of Labor issued H-1B1 Labor Attestation.

Furthermore, H-1B1 status holders may also be eligible to apply for a change of status to another non-immigrant status. According to INA 248, in order to be eligible, the alien must be in lawful status, absent any extraordinary circumstance and should file form I-129, Petition for a Nonimmigrant Worker with USCIS office governing the alien’s particular area.

Issues of Intent

It should be noted that unlike the H-1B, the H-1B1 status is not protected under the Dual Intent Doctrine. Instead the agreements with Chile and Singapore provide for the temporary entry of professionals into the United States. Therefore, in order to be issued an H-1B1 visa/status, the alien would bear the burden of having to prove that he/she has non-immigrant intent: that he/she (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. It should be noted that the circumstances surrounding an application to should indicate that the alien’s temporary work will eventually end and the alien will depart upon its completion. However, an intent to immigrate in the future, which is in no way connected to the proposed immediate trip, is not in itself grounds to deny the alien an H-1B1. [9 FAM 41.53 N27.5]

The Spouse and/or children of H-1B1 holders

The H-4 visa/status is for those H-1B1 holders who have a spouse and/or children that they would like to accompany them to the United States. H-4 visas are issued to the H-1 holder's spouse and children under twenty-one years of age. Holders of H-4 visas are considered to be dependents of H-1B visa holders. As H-4 status holders, spouses and children (who are minors under twenty-one years of age) may be entitled to enter and remain in the United States for the duration of the H-1 holder's authorized stay. The duration of their stay is limited to and equal to that of the H-1B visa holder. H-4 holders are permitted to attend school on either a part-time or full-time basis. H-4 holders are not permitted to work, however, unless otherwise authorized by the USCIS. For more information about H-4 visas, please click here.

Conclusion

As explained above, the H-1B1 visa/status had several similarities with the general H-1B status, but there are several key differences that should be taken into account; the most notable being that its creation was spurred by the Free Trade Agreements with Chile and Singapore. As with any application for a visa, it is important to always follow the instructions and guidelines so that the application process can unfold as smoothly as possible.

For more information on H-1B Visa, please refer on one of the following topics below:

H-1B Visa General Issues What is H-1B Visa H-1B Visa Requirements Application Process for a H-1B Benefits of H-1B Holders Limitations of H-1B Holders Documents Required for H1B Visa H-1B Extensions beyond the 6-Year Limitation Premium Processing and Related Issues H-4 Spouse & Children Visa H-1B1 Visas: Designated for Free Trade Agreement Workers H-1B2 Visas: Specialty Occupations Related to Department of Defense H-1B3 Visas: Designated for Fashion Model New Guidance on H-1B for Nurses Services that We Provide Frequently Asked Questions about H-1B H-1B Visa Filing Fees Attorney’s Fees

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