H-1B1 visa

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The H-1B1 visa (and associated H-1B1 status) is a variant of the H-1B visa in the United States for nationals of Singapore and Chile. [1] [2] The version for Singapore is called the H-1B1-Singapore and the version for Chile is called the H-1B1-Chile. These categories were introduced with the Singapore–United States Free Trade Agreement [2] and Chile–United States Free Trade Agreement [1] [3] respectively, both of which were ratified in 2003 by the 108th United States Congress (and signed into law by George W. Bush, the President of the United States at the time) and became active on January 1, 2004. The visas are also called FTA visas because they were provided for through Free Trade Agreements (FTAs).

Contents

H-1B1 is distinct from the E-3 visa for Australian nationals, even though both are variants of the H-1B. It is also distinct from the TN visa and associated status for residents of Canada and Mexico, which is associated with the North American Free Trade Agreement (NAFTA).

Relation with the H-1B program

Of the 65,000 visas allocated to the capped H-1B visa program, the amount of 6,800 are reserved for use for the H-1B1: 1,400 for Chile and 5,400 for Singapore. [4] All approved applications for H-1B1 classification, including those that involve issuance of a visa and those that involve a change of status, are counted towards these limits. [4]

Unused slots in the H-1B1 program in a given fiscal year get added to the general H-1B quota for the next fiscal year. [4] [5]

Nationals of Chile and Singapore can still avail of the usual H-1B visa. This might be advantageous for some of them because the H-1B program places fewer restrictions along some dimensions.

Program details and differences with the usual H-1B program requirements

Two ways of obtaining H-1B1 classification

There are two different ways a person can obtain H-1B1 status necessary to start a job on H-1B1: [4]

When the visa application or Form I-129 petition is approved, the worker can legally begin working on the H-1B1 classification on or after the indicated start date. Even for I-129 applicants, however, once the worker leaves the US to travel abroad, he/she must return home (Singapore or Chile) to a U.S. consulate for a new H-class visa stamp to re-enter the US. Please note that acquiring this visa stamp would require the worker to prove non-immigrant intent, without which his/her application may be denied, and he/she may not be able to return to the U.S.

Labor Condition Application

As is the case with the H-1B visa and E-3 visa, the employer needs to have a Labor Condition Application (LCA) approved by the United States Department of Labor in order for the employee to be eligible for the H-1B1 status or visa. [4] The LCA form is the same as for the H-1B visa, but needs to be annotated "H-1B1-Singapore" or "H-1B1-Chile" as the case may be. An employer may use a single LCA for multiple applicants as long as they all fall within the same category (i.e., they must all be in a single one of the categories: H-1B, H-1B1-Singapore, H-1B1-Chile, E-3). [6]

An approved LCA is a prerequisite for applying for H-1B1 classification (whether in the form of a H-1B1 visa or in the form of Form I-129 for change of status).

Eligibility criteria

Definition of specialty occupation

The concept of specialty occupation used for the H-1B1 status is somewhat broader than that used for the H-1B. Specifically, 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: [4]

Employer-employee relationship

As with the H-1B visa, it is necessary that there be a clear employer-employee relationship between the petitioning employer and the applicant. In particular, the H-1B1 visa applicant cannot be self-employed or an independent contractor. [1]

Non-immigrant intent

The H-1B visa is a dual intent visa, i.e., people who arrive on this visa may have partial immigrant intent. On the other hand, the H-1B1 visa is a non-immigrant intent visa, and applicants for the visa must clearly demonstrate such intent by demonstrating the following three things: [7] [ irrelevant citation ][ citation needed ]

  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.

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.

Note that, as with most non-immigrant statuses, the burden of demonstrating non-immigrant intent falls only at the time of visa application. Those who achieve the H-1B1 classification through a change of status via Form I-129 do not need to demonstrate non-immigrant intent - until they travel outside the U.S., after which they must return to their home country and apply for a H-class visa to re-enter the U.S.

Renewable one-year admission

Admission on a H-1B1 visa is for 18 months[ citation needed ], but the status can be renewed in yearly increments. Unlike the H-1B visa, there is no six-year limit. However, the associated Labor Condition Application is valid for only three years (initial) or two years (renewals), [8] so after expiry, a new LCA must be filed and used to support the petition.

Visa for spouses

The spouses of H-1B1 status holders are eligible for the H-4 visa and associated status, same as for the spouses of H-1B status holders.

Differences with H-1B program

CriterionH-1BH-1B1
Eligible nationalitiesAll non-USOnly Singapore and Chile
Relation with capsCounted against the general annual cap of 65,000 (minus visas reserved for Chile and Singapore) for the fiscal year, with some exceptions (20,000 applications for master's degrees per fiscal year, and cap exemption for people who have been counted toward the cap already and those working for a nonprofit research institution).Separate cap of 1,400 for Chile and 5,400 for Singapore. Unused H-1B1s for the previous year are added to a given fiscal year's cap.
Role of Form I-129 (Petition for a Nonimmigrant Worker)All H-1B classifications require the employer to file this formOnly applications for change of status, extension of status, or change of employer (applicable to people already present in the United States) need this Form.
Duration3 years, can be extended by another 3 years. After the completion of 6 years, cannot renew the H-1B status and must leave the US for at least a year before starting the next H-1B (unless an application for a permanent immigration status is pending).Indefinitely renewable 1-year increments
Definition of specialty occupationNarrow list of specialty occupations, all of which require a bachelor's degree or equivalent work experience.In addition to all the specialty occupations eligible for H-1B, allows agricultural managers and physical therapists (Chile only) and management consultants and disaster relief claim adjusters (Both Chile and Singapore).
Non-immigrant intentThe H-1B is a dual intent status, i.e., applicants may have intent to immigrate to the United States.H-1B1 visa applicants must clearly demonstrate non-immigrant intent, and may not apply for a Green Card while on the H-1B1.
Portability rule (AC21)Applicants on H-1B can start a job with a new employer as long as they have submitted a Form I-129, even before the form is approved.Applicants can start work with an employer only after their H-1B1 classification is approved, even if they are switching jobs.
Premium ProcessingThe H-1B is eligible for Premium Processing. Either the employer or the employee can pay the required $2,500 to expedite the application. USCIS guarantees a response within 15 calendar days, or the $2,500 will be refunded (and the case will continue to receive premium treatment.)Although the H-1B1 transfer of status processed in the same pool as other H1B I-129 change-of-status or extension of stay applications, it is ineligible for Premium Processing.
Cap-Gap ExtensionThe H-1B is eligible for Cap Gap Extension, which allows students who are on OPT or in their 60-day grace period as of April 1 - and have a pending/approved October 1 H-1B petition - to continue working (if OPT unexpired before April 1) or stay in the US (if OPT expired before April 1 but still within 60 day grace period) during the "gap."The H-1B1 is not eligible for the Cap Gap Extension. If a student's OPT ends, he/she must stop work immediately, and only resume employment when the H-1B1 petition has been approved.
Start DateThe H-1B application opens every April 1, 6 months before the official start date on October 1. Unless under Cap-Gap, applicants who are accepted in the lottery may not start working until October 1, and may not travel to the U.S. on H status until 10 days before their start date (if abroad).H-1B1 applicants can travel to the U.S. and start working as soon as their petitions (I-129 or consular processing) are approved.
FeesThe employer assumes most of the following fees for the H-1B:
  • $460 I-129 Base Filing Fee
  • $1500 American Competitiveness and Workforce Improvement Act Fee (for non-exempt employers with 26 or more full-time equivalent employees)/$750 (for non-exempt employers with 1-25 employees)
  • $500 fraud prevention and detection fee
  • $4000 Pub. L. 114-113 fee (for employers with >=50 employees in the US and more than 50% of those are in H-1B or L1 status)
  • $2,500 Premium Processing Fee (can be paid by either employer or employee)
For the H-1B1:
  • If applying for H-1B1 change of status (form I-129 via USCIS), the fees are the same as the H-1B's, except an exempt $500 fraud prevention and detection fee. Also, Premium Processing is unavailable
  • If applying through Consular Processing, the employee only pays $190 as part of the DS-160 Non-Immigrant Visa application processing fee

Usage of the program

Below, the number of approved H-1B visa and H-1B1 visa applications from Singapore, Chile, and globally are listed. [9] The H-1B1 classification became active on January 1, 2004, and the first H-1B1 visa approvals happened in Fiscal Year 2004. Note that these are visa approvals, not the total number of classifications made. This would cause a slight lag in the statistics, because people from Singapore and Chile who were already in H-1B status would continue to apply for H-1B visas when their original visas expired, rather than switch to H-1B1 status (even if they'd have chosen the latter had the option been present originally). However, even as late as Fiscal Years 2011-2013 (by which time most H-1B visa approvals would correspond to classifications made after the introduction of the H-1B1):

Fiscal YearH-1B approvals (global)H-1B approvals (Singapore)H-1B approvals (Chile)H-1B1 approvals (global)H-1B1 approvals (Singapore)H-1B1 approvals (Chile)
199780547358149000
199891360371148000
1999116513547156000
2000133290600203000
2001161643722278000
2002118352597308000
2003107196513259000
2004138965600333724626
200512409956127827519976
2006135421599262440286154
2007154053532269639416223
2008129464473204719411308
2009110367380204621302319
2010117409483255419168251
2011129134394199418171247
2012135530375209461212249
2013153223330187571261310
2014161369348156870472398
20151727483331641051551500
20161800573301361294685609
20171790493691371391759632
20181796603371741498808690
20191881233881861724879845
2020124983254981083537546
2021615691318715864891097
202220600251028023769271449

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<span class="mw-page-title-main">Labor Condition Application</span>

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<span class="mw-page-title-main">Form I-140</span> I-140, Immigrant Petition for Alien Worker

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The term H-1B-dependent employer is used by the United States Department of Labor to describe an employer who meets a particular threshold in terms of the fraction of the workforce comprising workers in H-1B status. An employer classified as H-1B-dependent needs to include additional attestations in the Labor Condition Application used for the petition of any H-1B beneficiary being offered an annual compensation of less than $60,000 and without a master's degree. The notion was introduced by the American Competitiveness and Workforce Improvement Act (ACWIA) passed in 1998 and operationalized through the United States Department of Labor's Interim Final H-1B Rule of December 20, 2000. The regulation is found in 20 CFR 655.736 in the Code of Federal Regulations.

In the United States, the most common visa used for short-term trips is the B visa. This is a combination of the B-1 visa and the B-2 visa. People on B visas are generally not allowed to engage in productive work or study activities. However, in some cases, B visas can be issued that allow people to engage in some types of productive work and learning activity, in lieu of another visa. The three visa categories, for which a B visa could be issued instead, are the H-1B visa, H-3 visa, and J-1 visa. The U.S. Department of State recommends that consular officers clearly annotate such B visas to make the scope of the visa clear to the applicant and the U.S. Customs and Border Protection officer at the port of entry.

A public access file is a file that needs to be maintained by any United States employer hiring people in H-1B, H-1B1, or E-3 temporary nonimmigrant worker statuses. It is intended to include more background information related to the attestations made on the Labor Condition Application used for the Form I-129 and/or visa application that was used to acquire the nonimmigrant worker status. The file may be requested by any member of the public through telephone or email inquiries. Any member of the public requesting access to the documents must be allowed to capture the information through such means as transcription, scanning, or taking photographs, for example. It is distinguished from a private access file that contains more sensitive and confidential employee data that must be shared with the U.S. Department of Labor if they choose to investigate. Regulations governing the public access file can be found in the Code of Federal Regulations, Title 20, or more specifically, in 20 CFR 655.760.

References

  1. 1 2 3 "Free Trade Agreement Work Visas (H-1B1)". Embassy of the United States, Santiago, Chile. Archived from the original on April 28, 2015. Retrieved April 2, 2015.
  2. 1 2 "USTR on Professional Workers in Chile, Singapore FTAs". Embassy of the United States, Singapore. July 23, 2003. Archived from the original on April 7, 2015. Retrieved April 2, 2015.
  3. ↑ "Chile Free Trade Agreement". Office of the United States Trade Representative. Retrieved April 2, 2015.
  4. 1 2 3 4 5 6 "9 FAM 402.10-5(B)" . Retrieved December 15, 2015.
  5. ↑ "H-1B Cap Resource Page". NAFSA: Association of International Educators. April 10, 2014. Retrieved April 2, 2015.
  6. ↑ "ETA Form 9035 (Printable Version)" (PDF). United States Department of Labor, Employment & Training Administration, Office of Foreign Labor Certification . Retrieved March 29, 2015.
  7. ↑ "9 FAM 402.10-5(F)".
  8. ↑ 20 CFR 655.750
  9. ↑ "Nonimmigrant visa statistics - Nonimmigrant Visa Issuances by Visa Class and by Nationality". United States Department of State . Retrieved October 2, 2019.
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