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.

H-1B1 Visa

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” that requires theoretical and practical application of a body of specialized knowledge and attainment of a bachelor’s degree or higher in the specific specialty (or its equivalent) as a minimum for entry into the occupation. The requirement is the same as the requirement to qualify as a professional under the H-1B category.

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 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 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 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 employer (or their immigration counsel) must submit an electronic Form 9035E to the U.S. Department of Labor. 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.

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

Spouses and dependent children of H-1B1 workers are eligible for H-4 visas that allow them to live in the United States. While the 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.

Frequently Asked Questions

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.

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? Spouses and dependent children of H-1B1 workers are eligible for H-4 visas, allowing them to live and study in the U.S. They're not authorized for employment unless they obtain their own work-authorized nonimmigrant status.