Locke Immigration Law

H-1B1 visa

H-1B1 Visa for Chileans and Singaporeans

H1B1 Visa — Locke Immigration Law

H-1B1 Visa for Chileans and Singaporeans

The H-1B1 Visa

The U.S.-Chile Free Trade Agreement and the U.S.-Singapore Free Trade Agreement led to the creation of a special category of visas only available to citizens of Chile or Singapore.

To qualify for an H-1B1 visa, applicants must meet the following criteria for eligibility. The H-1B1 visa is a nonimmigrant work visa available to a citizen of Chile or Singapore who has been offered a job in the U.S. in a “specialty occupation.” A specialty occupation requires the theoretical and practical application of a body of specialized knowledge and attainment of at least a bachelor's degree or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation. The job must meet specific criteria to qualify, and cap qualifications for the H-1B1 visa are determined by annual numerical limits set by current laws. Fields such as health care and fashion models of distinguished merit may also qualify as specialty occupations, provided they meet the criteria.

A prospective H-1B1 worker may apply for a visa directly at a U.S. Consulate or Embassy. The visa applicant must bring a certified LCA that the employer has obtained, along with a written offer letter from the prospective U.S. employer describing the job, the anticipated length of stay and terms of pay. The visa applicant must bring evidence that they meet the education requirements for H-1B1 status and for their particular offered job.

For a sponsored employee already present in the U.S. in a valid nonimmigrant status (which does not include ESTA visa waiver), an employer may file petitions, such as an I-129 petition, to USCIS seeking a change of status, extension of status, or change from one H-1B1 employer to another. A timely filed extension of status to work for the same employer confers 240 days of additional work authorization beyond the H-1B1 worker’s expiration of the I-94 period of admission while the decision from USCIS is pending.

H-1B1 visas are granted with 18 months of validity. Each time someone is admitted to the U.S. with their H-1B1 visa, they are admitted for a year. To be work authorized, the H-1B1 worker must be employed in a valid period of stay with an unexpired I-94 record, and must also have an unexpired certified LCA.

Labor Condition Application

Before an H-1B1 petition can be filed or an H-1B1 visa applied for, the employer must obtain certification of a Labor Condition Application (“LCA”). The LCA is part of the foreign labor certification process overseen by the Department of Labor's Employment and Training Administration (ETA). The employer (or their immigration counsel) must submit an electronic Form 9035E to the U.S. Department of Labor. Electronic filing is the standard method for submitting LCAs, and filing electronic applications requires reliable internet access. All LCAs must be submitted through the iCERT Portal System unless an exception is granted. Employers without internet access or with physical disabilities may request special permission to file by mail, and must submit a written request to the Department of Labor before filing. Technical support and LCA help are available via e-mail for employers needing assistance with the electronic filing process. An LCA cannot be approved unless the Department of Labor can verify the employer’s Federal Employer Identification Number (FEIN).

The LCA sets forth the minimum compensation for the sponsored job (per hour, per day, per month, or per year). The H-1B1 worker must be paid the “required wage rate” which is defined as the greater of (1) the “actual wage rate” (i.e., the rate paid by the employer to all its other employees with similar experience and qualifications for that employment); or (2) the “prevailing wage” (i.e., the wage rate for the occupational classification in the area of employment at the time the LCA is filed). The “prevailing wage” is determined by the National Prevailing Wage Center (NPWC) each year for each occupation, for each metropolitan area of the United States. Thus, H-1B1 workers earn the same wages as American workers who work in the same position. Employing an H-1B1 worker is not cheaper than employing an American worker.

Licensure is Not a Prerequisite to H-1B1 Admission

An H-1B1 worker is expected to comply with licensure requirements following admission where their profession requires a state license. It is not required that the H-1B1 worker obtain a license to practice in their field in the U.S. before they commence their H-1B1 status.

Comparison to H-1B Visa

The H-1B1 visa and the H-1B visa are both designed to allow U.S. employers to temporarily employ foreign workers in specialty occupations that require the theoretical and practical application of highly specialized knowledge. However, there are important distinctions between these two nonimmigrant worker categories that employers and foreign workers should understand.

One of the most significant differences is eligibility based on nationality. The H-1B1 visa is exclusively available to citizens of Chile and Singapore, reflecting the provisions of the U.S.-Chile and U.S.-Singapore Free Trade Agreements. In contrast, the H-1B visa is open to qualifying foreign workers from any country, making it a broader option for employers seeking to fill professional positions with individuals who possess specialized knowledge in a specific specialty.

The annual number of visas available also differs. The H-1B program is subject to an annual cap of 65,000 visas, with an additional 20,000 available for those holding a U.S. master’s degree or higher. The H-1B1 visa, on the other hand, has a separate annual cap of 6,800, with 1,400 visas allocated to Chile and 5,400 to Singapore. Unused H-1B1 numbers may be added back to the H-1B pool for the following fiscal year, but the caps are strictly enforced under current laws.

Both the H-1B and H-1B1 visas require the position to qualify as a specialty occupation, meaning the job must require at least a bachelor’s degree or its equivalent in a field directly related to the position. Employers must file a Labor Condition Application (LCA) with the Department of Labor, attesting that they will pay the prevailing wage for the occupation and maintain working conditions that do not adversely affect U.S. workers. The LCA process is a critical step in ensuring compliance with the Immigration and Nationality Act, which is designed to protect both foreign and domestic workers.

A key distinction between the two visas is the concept of dual intent. The H-1B visa allows for dual intent, meaning foreign workers can pursue permanent residency (a green card) while working in the U.S. on a temporary, nonimmigrant basis. The H-1B1 visa, however, does not permit dual intent; applicants must demonstrate that they do not intend to immigrate permanently and that their stay in the U.S. is temporary, based on the intended employment period.

The application process for both visas involves submitting supporting documentation, including proof of education, specialized knowledge, and a certified LCA. For the H-1B visa, employers file a petition (Form I-129) with U.S. Citizenship and Immigration Services (USCIS), while H-1B1 applicants can often apply directly at U.S. consular sections abroad, streamlining the process for qualifying foreign workers from Chile and Singapore. Both categories require employers to file electronic applications and maintain compliance with Department of Labor regulations.

Validity periods also differ. The H-1B visa is typically granted for up to three years and can be extended for a total of six years, with certain exceptions for those pursuing permanent residency. The H-1B1 visa is generally issued for up to 18 months, with admissions to the U.S. granted in one-year increments. Extensions are possible, but must be filed in accordance with current laws and regulations, and are typically granted in one-year increments.

Both visa categories require employers to provide evidence that the foreign worker meets the education and experience requirements for the professional position, and that the job duties involve the practical application of highly specialized knowledge. The Department of Labor evaluates factors such as job responsibility, qualifications, and business specialties when determining the prevailing wage and ensuring that the employment of foreign workers does not negatively impact U.S. workers.

In addition to the H-1B and H-1B1 visas, employers may consider other options for hiring foreign workers in specialty occupations. For example, the E-3 visa is available to citizens of Australia and also requires a labor condition application and proof of specialized knowledge.

Understanding the differences between the H-1B and H-1B1 visas is essential for employers and foreign workers navigating the U.S. immigration process. By carefully reviewing the requirements, validity periods, and application procedures, employers can ensure compliance with the Immigration and Nationality Act and make informed decisions about which visa best fits their intended employment needs. For additional information or technical assistance with filing, labor certification, or supporting documentation, consulting with experienced immigration counsel is highly recommended.

Extending H-1B1 Status

While the LCA may be issued for up to three years, extensions to H-1B1 status are granted in one-year increments. H-1B1 status can be renewed indefinitely.

Grace Period

If an H-1B1 worker and their dependent family members do not maintain status solely because the H-1B1 worker's employment ceased, they will be given the shorter of 60 consecutive days or the end of their original authorized validity to remain in the U.S. The purpose of the 60 days is to give the person an opportunity to find other employment.

Presumption of Immigrant Status

H-1B1 workers must prove no intention of abandoning their residence abroad. However, there is no specific requirement to maintain a home outside the U.S., nor must an H-1B1 worker prove that they have no intention to immigrate ever in the future, beyond the current period of admission they seek.

Family of H-1B1 Workers

The spouse of an H-1B1 worker, as well as dependent children, is eligible for an H-4 visa that allows them to live in the United States. While the spouse and other family members are allowed to enroll in school at any level, they are not authorized for employment unless they obtain their own H-1B1 visa or another work-authorized nonimmigrant status.

  1. What is an H-1B1 visa? The H-1B1 visa is a nonimmigrant work visa for citizens of Chile or Singapore who have been offered a job in the U.S. in a “specialty occupation.” This job requires specialized knowledge and at least a bachelor’s degree or its equivalent.

  2. How do I apply for an H-1B1 visa? Prospective H-1B1 workers can apply directly at a U.S. Consulate or Embassy, bringing a certified Labor Condition Application (LCA) from the employer and a written offer letter. They should also present evidence that they meet the educational requirements for the job.

  3. Can an employer file a petition for a sponsored employee already present in the U.S.? Yes, employers can file an I-129 petition to the USCIS for an employee already present in the U.S. in a valid nonimmigrant status for a change of status, extension of status, or change from one H-1B1 employer to another. If you're considering the H-1B lottery, seeking legal advice early on can be beneficial for both employers and employees.

  4. What is the validity period of an H-1B1 visa? An H-1B1 visa is valid for 18 months. However, each time the visa holder enters the U.S., they’re admitted for a year.

  5. What is a Labor Condition Application (LCA)? An LCA is a necessary prerequisite before filing an H-1B1 petition or visa application. It specifies the minimum compensation for the job offered and ensures the worker receives at least the same wages as their American counterparts.

  6. Is licensure a prerequisite to H-1B1 admission? No, H-1B1 workers are expected to comply with licensure requirements after their admission if their profession requires a state license.

  7. Can H-1B1 status be extended? Yes, while the LCA may be issued for up to three years, extensions to H-1B1 status are granted in one-year increments. H-1B1 status can be renewed indefinitely.

  8. What is the grace period for an H-1B1 worker? If an H-1B1 worker loses their employment, they’re given 60 consecutive days or the end of their original authorized validity (whichever is shorter) to stay in the U.S. and find other employment.

  9. Do H-1B1 workers need to prove an intention to return to their home country? H-1B1 workers must prove no intention of abandoning their residence abroad, although there’s no specific requirement to maintain a home outside the U.S.

  10. What provisions are there for the family of an H-1B1 worker? The spouse and dependent children of an H-1B1 worker are eligible for H-4 visas, allowing the spouse and children to live and study in the U.S. The spouse is not authorized for employment unless they obtain their own work-authorized nonimmigrant status.