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.
Note, the H-1B visa which has no nationality restrictions- is a different visa category that you can read about here: https://lockeimmigration.com/h1b-visa
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. H-1B1 visas are used for specialty occupations similar to those under the H-1B category. These include fields such as:
Architecture
Engineering
Information Technology
Mathematics
Physical Sciences
Social Sciences
Medicine and Health
Education
Business Specialties
Accounting
Law
The Arts
There is an annual maximum of H-1B1 visas that can be issued (1,400 for Chileans and 5,400 for Singaporeans), but in practice H-1B1 visas are normally available year-round because of modest demand.
A prospective H-1B1 worker with a sponsoring employer 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 an offer letter from the prospective U.S. employer describing the offered 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 on their behalf seeking a change of status, extension of status, or change from one H-1B1 employer to another. It is important to file the extension request before the current status expires to maintain lawful status in the U.S.
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. The concept of "portability" as it applies to H-1B visas, which allows an H-1B worker to begin working for a new employer as soon as the new employer files a non-frivolous H-1B petition, does not extend to H-1B1 visas. That means that the H-1B1 worker cannot start working for a new employer until their new petition is approved (or until they enter the U.S. with a visa issued for them to work for the new employer).
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. H-1B1 status is renewable indefinitely as long as the H-1B1 worker continues to meet the eligibility requirements
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 U.S. Department of Labor. The employer or their immigration counsel must submit a Form 9035E to the U.S. Department of Labor through the Foreign Labor Application Gateway aka FLAG system (which replaced iCERT in recent years). Electronic filing is the standard method for submitting LCAs. An LCA cannot be approved unless the Department of Labor can verify the employer’s Federal Employer Identification Number (FEIN).
Once submitted, the DOL reviews the LCA to verify that it is complete and free of obvious errors. The DOL typically certifies the LCA in seven business days.
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 that the government says is normal for that occupation in that location at that level of seniority). 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.
If the offered position is covered by a Collective Bargaining Agreement, the wage specified in the agreement is considered the actual wage. The employer must attest that the LCA has been provided to the collective bargaining representative or posted at the worksite if no union is present.
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 getting their H-1B1 visa or entering the U.S. in H-1B1 status.
Admission or classification as an H-1B1 nonimmigrant is not supposed to be denied solely because the applicant does not already hold a license to practice in the United States. In some states, licensure is contingent upon obtaining a taxpayer identification number or other U.S. immigration status, so it’s not actually possible to obtain licensure before obtaining 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.
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 master's degree or higher from a qualifying U.S. institution of higher education. The H-1B1 visa has a separate annual cap of 6,800, with 1,400 visas allocated to Chile and 5,400 to Singapore. Whereas in recent years the H-1B cap has been completely filled as soon as registration opens each year, necessitating a lottery to see who can actually submit a petition, H-1B1 has much less demand and visas are typically available year-round.
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.
Another 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 USCIS, while H-1B1 applicants typically apply directly at U.S. Embassy or Consulate abroad, without getting a petition approval from USCIS. 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 three years and can be extended for a total of six years, with more extensions allowed for those who hit certain milestones in the green card process. The H-1B1 visa is generally issued for up to 18 months, with admissions to the U.S. granted for one year at a time.
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.
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
An H-1B1 worker and their dependents haven’t failed to maintain their nonimmigrant status solely on the basis of losing their job, for up to 60 days or until their I-94 authorized period of stay expires, whichever is sooner. By the end of the grace period, the H-1B1 worker and dependent family members should depart the U.S. or apply to change or extend their status (with a new sponsoring employer).
Presumption of Immigrant Status
H-1B1 workers should be able to show that they have 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.
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.” Their offered job must require specialized knowledge and at least a bachelor’s degree or its equivalent.
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 their employer and an offer letter describing the offered job and its requirements. They should also present evidence that they meet the educational requirements for the job.
Can an employer file an H-1B1 petition for a sponsored employee already present in the U.S.? Yes, employers can file an I-129 petition to 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.
What is the validity period of an H-1B1 visa? An H-1B1 visa is valid for 18 months. Each time the visa holder enters the U.S., they’re admitted for a year.
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. An H-1B1 worker must always have an unexpired LCA associated with their H-1B1 status.
Is licensure a prerequisite to H-1B1 admission? No, but H-1B1 workers are expected to comply with licensure requirements after their admission if their profession requires a state license.
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.
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.
Do H-1B1 workers need to prove an intention to return to their home country? H-1B1 workers must be able to demonstrate no intention of abandoning their residence abroad, although there’s no specific requirement to maintain a home outside the U.S.
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 and children are not authorized for employment unless they obtain their own work-authorized nonimmigrant status.