H-1B1 Subcategory: Free Trade Agreement

The H-1B1 is a subcategory of the H-1B visa designated for workers in specialty occupations,” with no quotes around specialty occupations from Chile and Singapore. It was established by the U.S.-Chile Free Trade Agreement and the U.S.-Singapore Free Trade Agreement.

Qualifying Jobs

For the most part, H-1B1 workers can do any job that H-1B workers are allowed to do, with a few exceptions. The definition of “specialty occupation” for H-1B1 workers is currently identical to the regulatory definition for H-1B, meaning that it requires theoretical and practical application of a body of specialized knowledge, along with a bachelor’s degree (or its equivalent) or higher in the specific specialty. [8 C.F.R. 214.2]

Here are the exceptions. 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). For more information about the alternative credentials acceptable, see the Department of State’s Foreign Affairs Manual on the topic here (look for 9 FAM 402.10-5(E)), or see the relevant section of the U.S.-Chile Free Trade Agreement here (look for Appendix 14.3(D)(2)).

Application Requirements

In order to qualify, alien workers from Chile or Singapore must first meet the academic and occupational requirements outlined above.

Then, they will need the following documentation, per 9 FAM 402.10-5(H):

  • Evidence that their employer has filed a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL) covering the position

    -A certified form ETA-9035 clearly annotated as “H-1B1 Chile” or “H-1B1 Singapore” must be submitted as evidence of filing.

  • Evidence that their employer has paid any applicable fee imposed
  • Evidence that the foreign workers’ stay in the U.S. will be temporary

    -Typically, a letter or contract of employment showing that that the employment will be temporary suffices.

  • Payment of the Machine Readable Visa (MRV) fee


Other Details

An I-129 is generally not required.

Unlike H-1B applicants, H-1B1 applicants do not need to submit Form I-129 (Petition for a Nonimmigrant Worker), as stipulated in the treaties between the United States and Chile and Singapore. Instead, eligible workers can apply for the visa directly at a U.S. consulate by submitting  the documentation outlined above. However, if a Chilean or Singaporean worker is applying for a change of status, extension of status, or a transfer from one H-1B1 employer to another, then he or she will need an I-129, LCA, and Data Collection Supplement filed. [9 FAM 402.10-5(C)]

Licensure is not a requirement (at least initially).

While eligible free trade agreement workers can be admitted into the United States without a license in their designated fields, they are expected to comply with all licensure requirements that are applicable to their line of work following admission into the U.S. [9 FAM 402.10-5]

An LCA is required.

Your employer must submit Form 9035 to DOL, which should indicate either “H-1B1 Chile” or “H-1B1 Singapore.” The LCA is required to certify 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)]

H-1B1s are not portable.

The portability rule, as described in the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), allows an employee to change employers and start work with a new employer on the date U.S. Citizenship and Immigration Services (USCIS) receives the transfer petition, which the new employer submits on the beneficiary’s behalf. According to INA 214(n), however, H-1B1 workers do not enjoy this benefit.

There are only 6,800 of them.

According to the underlying free trade agreements, a maximum of 1,400 professionals from Chile and 5,400 professionals from Singapore are permitted to enter the U.S. as H-1B1 workers per year. These numerical limits are factored into the gross H-1B cap. [9 FAM 402.10-5(B)]

You only get one year.

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 maximum for those admitted on an H-1B1—eligible workers can have their status renewed indefinitely. However, every third extension filed requires a new two-year LCA. [9 FAM 402.10-5(F)]

Changing to H-1B1 Status in the U.S.

If you are a national of Chile or Singapore and currently in the United States under a nonimmigrant classification, you may be eligible to change your status to H-1B1. To this end, Form I-129 must be submitted to USCIS, accompanied by:

  1. A letter from your U.S. employer stating the work and duties you’re to be engaged in, the anticipated length of stay, and the arrangements for remuneration;

  2. Evidence that you meet the educational requirements outlined in the jobs section above; and

  3. A DOL-certified LCA.

If you’re already in H-1B1 status, you may alternatively be eligible to petition for a different nonimmigrant status. As stipulated in INA 248, in order to be eligible, you must be in lawful status (absent any extraordinary circumstance) and file Form I-129 (Petition for a Nonimmigrant Worker), with the USCIS office governing your particular area.

What is your intent?

Unlike the H-1B, H-1B1 visas are not a “dual intent” classification. Nonimmigrant visa applicants will be denied if they are found to have immigrant intent, i.e. the intent to seek permanent resident status. H-1B holders, however, are allowed to petition for permanent residency without jeopardizing their status.

The reason stems from the agreements with Chile and Singapore, which explicitly provide for only temporary stays of professionals in the U.S. Accordingly, in order to be issued an H-1B1 visa, free trade agreement workers bear the burden of proving that they have only nonimmigrant intent. To this end, they can demonstrate that they:

  1. Have a residence abroad;

  2. Have no intention of abandoning said residence; and

  3. Intend to leave the U.S. upon the expiration of their H-1B1 status.

The evidence submitted in an H-1B1 application should clearly demonstrate that a foreign worker’s employment will end on a set date, at which time the worker will depart the country. But this doesn’t mean an H-1B1 worker can’t have future immigrant intent. In fact, an intent to immigrate to the U.S. in the future that isn’t connected to an H-1B1 visa can’t be used as a reason to deny an H-1B1 petition or revoke H-1B1 status. [9 FAM 402.10-5(F)]

H-4 Dependents: Spouses and Children

Spouses and children under the age of 21 can apply for H-4 visas based on a principal’s H-1B1 visa. The H-4 classification allows them to join the H-1B1 worker in the U.S. for the duration of the H-1B1 worker’s authorized stay. They can also attend school or university on either a part-time or full-time basis, but they are not permitted to work without explicit authorization from USCIS. For more information about H-4 visas, click here.

Our experienced immigration attorneys are here to guide professionals through the complicated H-1B application process, and minimize any and all confusion or challenges. We understand how important an H-1B visa is to you, whether as the employer or the prospective employee. Our seasoned staff and years-long track record of success make Zhang & Associates the natural choice to facilitate your H-1B petitions.

For more detailed information on the H-1B category, including minimum requirements and USCIS policies, refer to the following links:

General H-1B Topics

H-1B Articles


Updated 04/26/2017