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H1B1 Visa for Chileans and Singaporeans in a Specialty Occupation
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On September 3, 2003, President George W. Bush signed into law Free Trade Agreements (FTAs) with Singapore and Chile. The FTAs included provisions for a new class of non-immigrant work visa for Singaporean and Chilean citizens: the H-1B1 visa. These two FTAs, and the newly established H-1B1 visa category, became effective on January 1, 2004.

Qualifications for H-1B1 Visa for Chileans and Singaporeans:

The basic requirements for the H-1B1 visa are essentially identical to those of the H-1B visa category.

To qualify for H-1B1 visa you must show that:

  • You are a citizen of Chile or Singapore;

  • The Position offered to you is in a specialty occupation; that is, it must require theoretical and practical application of a body of specialized knowledge, the attainment of which is generally gained through a bachelor’s degree or higher, or its equivalent, in the specific specialty, as a minimum for entry into the occupation;

  • You must have attained a post-secondary degree, or its equivalent, involving at least four years of study in your field of specialization;

  • You will be employed by a U.S. employer.

    NOTE: The H-1B1 visa does not allow you to be self-employed or to be an independent contractor;

  • The period of employment in the U.S. must be temporary, so you must demonstrate nonimmigrant intent.

Cap Limit on H-1B1 Visa for Chileans and Singaporeans:

The H-1B1 visa category, while a benefit to professionals from Chile and Singapore that would otherwise be subject to the H-1B cap, has its own numerical limits. There are 1,400 H-1B1 visas available for Chileans, and 5,400 visas set aside for Singaporean nationals. Unfortunately for most these 6,500 visas are carved out of the available 65,000 under the H-1B cap, effectively reducing the H-1B cap to 58,500. However, any H-1B1 visas not used are added back to the cap for the next year.

Application Process for H-1B1 Visa:

Like most other treaty based visas (including the E-1, E-2, E-3, and TN), you do not have to have a petition approved by the United States Citizenship and immigration Services (USCIS) before you can apply for an H-1B1 visa. The employer does not have to submit Form I-129, Petition for Nonimmigrant worker, to the USCIS, and you do not need to obtain a Notice of Approval, Form I-797, before submitting their visa application. You can apply for the H-1B1 visa directly at the U.S. Consulate in Chile or Singapore.

You must bring the following documents to your H-1B1 visa interview:

  1. Letter of Employment: Job letter from your U.S. employer specifying the details of the temporary position (including job responsibilities, salary and benefits, duration, description of the employing company, qualifications of the applicant, etc.) and confirming the employment offer;
  2. Certified form ETA 9035 or 9035E from the U.S. Department of Labor provided by the employer;

  3. Valid Passport: Your passport must be valid for travel to the United States with minimum validity of six months beyond your intended period of stay in the United States;

  4. Visa Application: You must submit an online electronic application form, DS-160 Non-Immigrant Visa Electronic Application; and

    NOTE: You will simply need to print out the confirmation page containing the bar code and bring this page to the visa interview. It is no longer necessary to provide a printed application form to the Consular Officer during the visa interview;

  5. Application Fee Receipt: You must pay the application fee and carry the receipt along with you to your interview.

Change of Status to H-1B1 if you are Already Inside the U.S.:

  • If you are already in the United States in a nonimmigrant visa category which supports change of status (e.g., Visa Waiver does not support a Change of Status), and you continue to maintain your status, you may apply for a change of status to H-1B1 visa.

  • To apply for a Change of Status your employer must file a Form I-129, accompanied by:

    1. Letter from U.S. employer stating the activity to be engaged in, the anticipated length of stay and the arrangements for remuneration;
    2. Evidence that education requirements are met; and
    3. Labor Conditions Application (LCA).


Duration and Extension of your Stay on H-1B1 Visa:

H-1B1 visas are only valid for 18 months, as opposed to 3 year validity periods in H-1B visa status, and the validity of the H-1B1 visa cannot exceed the validity period of the Labor Condition Application (LCA). When entering the U.S. as, or changing status to, H-1B1 status you can only be admitted for a one-year period. However, the H-1B1 status is renewable indefinitely, provided that you are able to demonstrate that you do not intend to remain or work permanently in the U.S.

Spouses and Children of H-1B1 Visa Holders. May Spouses Work?

Only spouses and children of H-1B1 visa holders are eligible for derivative (H-4) visas. Parents and other family members are not eligible for H-4 visas. Like all other persons in H-4 status, the spouses and children of H-1B1 visa holder are not eligible to work in the United States.

H-1B1 Visa for Chileans and Singaporeans Does Not Support Dual Intent:

One of the minor drawbacks of the H-1B1 visa is that, unlike the H-1B visa, the H-1B1 visa does not fall under the doctrine of dual intent. This means that an individual in H-1B1 status may not be able to extend their H-1B1 status once they begin the permanent residence process. This makes it critical to carefully plan out a strategy if you wish to pursue permanent residence in the United States while on H-1B1 status.

Medical Doctors and the H-1B1 Visa:

Again, as with the H-1B visa status, generally, physicians from Singapore and Chile may be granted H-1B1 status only if their employment involves research and teaching, with any patient care incidental to such duties. The bar on rendering patient care has been eliminated for physicians with an appropriate state license, and who have passed the FLEX examination or USMLE Parts I, II, and III and ECFMG English test, if applicable.

H-1B1 Visa for Chileans and Singaporeans - Pros and Cons:
  • Similar to the TN visa for Canadian and Mexican citizens, one of the greatest advantages of the H-1B1 visa category is that H-1B1 visa holders do not need to first obtain approval of an H-1B1 Petition from the USCIS.
  • The H-1B1 visa category has the disadvantage of only being issued for one year at a time, however, it has the advantage of having no limitation on the number of times it can be extended, as long as you can show nonimmigrant intent.

  • The H-1B1 visa category shares the same disadvantages of the TN category, in that H-1B1 visas do not provide certain protections available to H-1B and L-1 holders under the doctrine of dual intent.

  • If considering filing for permanent residence H-1B1 visa holders must carefully plan out the process and the timing for filing any petitions and applications.  Because the doctrine of dual intent does not apply, H-1B1 visa holders generally may not pursue permanent residence in the United States while in H-1B1 status, or must plan their application very carefully. However this does not prevent Singaporean and Chilean nationals from applying for regular H-1B status.
Conclusion

The H-1B1 visa category is a very real alternative to use for qualified professionals from Singapore and Chile, either before or especially after the regular H-1B cap has been reached. When unable to locate workers within the U.S., and if the H-1B cap has been reached, employers may wish to consider looking for the needed talent in, and making efforts to recruit from, Chile or Singapore. Filing H-1B1 visa petitions does not preclude citizens of Chile and Singapore from applying for a regular H-1B visa petition. Thus if you truly intend to pursue a green card, you should consider switching over to a regular H-1B visa as one option before moving forward with your green card process.

Our experienced attorneys are always there to assist you.

Contact VisaPro if you have any questions regarding the H1B1 Visa, or need help in filing. Our experienced attorneys will be happy to assist you.

We also cover the latest happenings on various other work visas in Immigration Monitor, our monthly newsletter. Click here to subscribe to Immigration Monitor.

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