H1B1 Visa

The H-1B1 visa is a nonimmigrant work visa category, similar to the H-1B. It allows foreign nationals to work in the U.S. and perform services in a prearranged, professional job, specifically a “specialty occupation”. What makes the H-1B1 different is that it is reserved specifically for citizens of Chile and Singapore only.

The category was created as part of the US-Chile Free Trade Agreement and the US-Singapore Free Trade Agreement.

The key characteristics of the H-1B1 visa are:

1. Unlike the H-1B, No prior petition approval from USCIS. is required. Citizens of Singapore and Chile can apply for a H-1B1 visa directly at any U.S. consulate or embassy.
2. The job must generally be in a specialty occupation that requires a “theoretical and practical application of a body of highly specialized knowledge”
3. The foreign national applicant must generally have a bachelor’s degree or its equivalent in the required field unless the offered occupation falls into certain specific occupations-Disaster Relief Claims Adjuster, Management Consultants, Physical Therapists and Agricultural Managers

A specialty occupation is a job that requires:

1. the theoretical and practical application of a body of specialized knowledge and
2. attainment of a bachelor’s degree or its equivalent in a specific specialty, at a minimum, for entry into that occupation.

In order to qualify as a specialty occupation, the proposed position should meet at least one of the following criteria:

1. The minimum entry requirement for the position is normally a bachelor’s degree or higher in a specific field.
Examples:

2. The degree requirement is common to the industry or the job is so complex or unique that only a person with at least a bachelor’s degree in a specific field can perform the job duties.

3. The employer’s normal and regular requirement for the position is a bachelor’s degree.

4.The knowledge required to perform the specialized and complex duties can only be gained through attaining a bachelor’s degree or higher.

Note: Architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.

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The Free Trade Agreements with Chile and Singapore allows for immigration to accept “alternative credentials” to the bachelor’s degree or its equivalent for certain specific occupations:

1. Disaster Relief Claims Adjuster- the applicant must have a bachelor’s degree, Licenciatura degree or Titulo Profesional and have completed appropriate training in the areas of insurance adjustment for disaster relief claims. Alternatively, immigration will accept 3 years of experience in claims adjustment in addition to completion of training in the areas of insurance adjustment for disaster relief claims.
2. Management Consultant- the applicant must a bachelor’s degree, Licenciatura degree, or Titulo Profesional in a field or discipline related to the specific role. Alternatively, immigration will accept a bachelor’s degree, Licenciatura degree, or Titulo Profesional in any field along with 3 years of experience in field or specialty related to the consulting agreement.
3. Agricultural Managers (Chilean citizens only)- the applicant can qualify with a combination of a post-secondary certificate (which requires at least 3 years of study in the specialty) and 3 years of experience
4. Physical Therapists (Chilean citizens only)- the applicant can qualify with a combination of a post-secondary certificate (which requires at least 3 years of study in the specialty) and 3 years of experience

Yes. The H-1B1 category does have a numerical, annual limit that comes out of the 65,000 H1B cap. 1,400 H-1B1’s are available for citizens of Chile, and 5,400 are set aside for citizens or nationals of Singapore.

To date, the quota or “cap” for the H-1B1 has never been exhausted and there has never been a lottery similar to the H-1B lottery. Therefore, an H-1B1 can be filed at any time of the year.

The H-1B1 is only available to citizens of Chile and Singapore because the category is based on treaties between the US and those countries. The US entered into Free Trade Agreements (FTAs) with Singapore and Chile on September 3, 2003, both of which provided for a new class of non-immigrant work visa for Singaporean and Chilean citizens: the H-1B1.

The main requirements for an H-1B1 are:

1. You must be a citizen or national of Chile.
2. The position in the US must be a “specialty occupation;” that is, it must require the theoretical and practical application of a body of specialized knowledge. Some examples of specialty occupations are jobs in the fields of engineering, mathematics, physical sciences, computer sciences, medicine and health care, education, biotechnology, and business specialties such as management and human resources.
3. You must have a post-secondary degree involving at least four years of study in your field of specialization (except if one of the categories described above), or its equivalent work experience.
4. The period of employment in the U.S. must be temporary, so you must demonstrate non-immigrant intent.

H-1B1 Visas are generally issued for 18 months at the US Consulate and the maximum duration of stay on each entry is 12 months or the expiration of the LCA, whichever is sooner. Extensions of stay and/or change of status petitions are also approved for no longer than 12 months. However, the H-1B1 has not maximum validity. This means there is no limit to how many times an H-1B1 is extended or how long a person can live and work in the U.S. in H-1B1 status.

The H-1B1 category does not allow for “self-employment”, however, it is certainly a viable category that can be utilized by entrepreneurs who want to start a new business in the U.S.
Generally, the regulations do not explicitly permit or prohibit self-employment. The regulations and guidance requires that there be an employer-employee relationship between the visa holder and the U.S. employer. Therefore, if the U.S. company is ready to show that there will be a valid employer-employee relationship between the company and the visa applicant, the H-1B1 can be a viable option an entrepreneur to be employed with their own company.

The benefits of H-1B1 visa are:

1. No prior petition with the USCIS is required: One of greatest advantages of the H-1B1 visa is that H-1B1 beneficiaries do not need to first obtain approval from USCIS and can directly apply for a visa at the U.S. consulate.
2. No Lottery– Because the H-1B1 quota is never exhausted there’s no lottery and applicants can seek an H-1B1 visa at any time of the year, even when the regular H-1B Cap has been exhausted.
3. No maximum validity– Unlike the H-1B, the H-1B1 does not have a maximum validity or period of stay. Although H-1B1 status is only given in 1 year increments, there are no limits on the number of extensions.

Some of the limitations of the H-1B1 visa:

1. Validity: One of the major drawbacks of the H-1B1 visa is that H-1B1 status is only given in 1-year increments.
2. Doctrine of dual intent: The H-1B1 visa does not provide certain protections which are available to the H1B and L-1 visa holders under the doctrine of dual intent. Therefore, when seeking lawful permanent residence, the applicant must work closely with their attorneys to ensure that they can either switch to H-1B or obtain appropriate work authorization during the green card process.

Yes, you can change your status to H-1B1 or extend your status on H -1B1.

The H-1B1 visa category does not require prior petition approval. This means, unlike other visa categories like the H-1B, L-1, O-1, etc., the U.S. employer is not required to file the Form I-129 and obtain an approval first.

For those in H-1B1 status, USCIS does allow employers to submit the Form I-129, Petition to Nonimmigrant Worker in order to request a change of status or extension of status for an H-1B1 worker. This means if someone is in valid nonimmigrant status in the U.S., a petition to change their status to H-1B1 can be filed so they do not have to travel. The same is true for those already in H-1B1 status. The Form I-129 can be filed to extend the status of anyone in the U.S. already in H-1B1 status.

Alternatively, anyone seeking H-1B1 status or wanting to extend their stay can travel abroad to obtain a new H-1B1 visa.

To receive an H-1B1 visa, you must make an appointment at the U.S. consulate and follow any directions regarding the submission of documents and fees for the appointment.

In order to obtain the H-1B1 visa, the following documents, forms and information are generally required:

1. Form DS-160, Online Nonimmigrant Visa Application, submitted online
2. A passport valid for travel to the U.S. and is valid for the intended period of stay in the U.S.
3. The employer must file a Labor Condition Application (LCA) with the US Department of Labor. The Form ETA 9035 or LCA is filed through Dept. of Labor’s Foreign Labor Application Gateway or “FLAG” website. It must be submitted and certified before an H-1B1 tries to obtain the H-1B1 visa. All H-1B1 visa applicants or petitions must include a certified LCA. The LCA contains basic wage and location information about the proposed H-1B1 employment, including the rate of pay, period of employment, and work location(s).
4. The employer should prepare an Employer’s Support Letter, which includes a detailed description of the position, which includes the job title, a description of the duties and responsibilities, offered salary and/or benefits and the minimum requirements for the position.
5. The applicants credentials, which include a copy of the applicant’s degree certificate, credential evaluation for the degree and/or experience, Professional licenses, if required to perform the offered position, or alternative credentials as explained above.
6. If the applicant was previously in the U.S., copies of all prior USCIS approval notices and/or visas to evidence continuous maintenance of valid nonimmigrant status

No. The H-1B1 nonimmigrant visa does not require that a petition be filed or approved before applying for the H-1B1 visa.

While the H-1B nonimmigrant visa category requires the you have any required licensures before you apply, classification as an H-1B1 nonimmigrant professional does not have that same requirement. According to 9 FAM §41.53 N28.6, licensure to practice a given profession in the US is a post-entry requirement, subject to enforcement by the appropriate state or other sub-federal authority.

Proof of licensure to practice in a given profession in the US may be offered along with a job offer letter, or other documentation in support of an application for an H-1B1 visa. However, 9 FAM §41.53 N28.6 states that admission/classification should not be denied based solely on the fact that the applicant does not already hold a license to practice in the United States. [Note: Aliens seeking classification as H-1B1 are subject to the INA §212(a) (5) (C) ground of inadmissibility for uncertified foreign health care workers.]

Yes, it is possible to do extend H-1B1 status or change employers without traveling to obtain a new H-1B1 visa.

Those in valid H-1B1 status can extend their status or change employer by having the employer file the Form I-129, Petition for Nonimmigrant Worker. When filing the Form I-129 to extend status or change employer, the following documents should be included:

1. Certified ETA Form 9035, Labor Condition Application

2. A copy of your current passport and most recent Form I-94

3. Evidence of your previous H-1B1 approval of status:

4. Employer’s Support Letter, which includes a detailed description of the position, which includes the job title, a description of the duties and responsibilities, offered salary and/or benefits and the minimum requirements for the position.

5. Copy of the specific diploma(s) and official transcripts, licenses, certification(s), and/or experience letter(s) demonstrating that you have educational background, experience, and/or certifications/licenses necessary for the position as per regulations

6. Payroll documents or other comparable documents showing that you have been receiving remuneration as per your current H-1B1.

The wait times at each Consulate vary. The visa will generally be issued about 5 to 10 days after your appointment with the US Consulate (though the actual procedure may vary by Consulate).

The processing times for petitions for change of status or extension of stay submitted to USCIS can vary widely based on different factors and at which Service Center the petition is pending. You can check current processing times here.

Yes, you may bring your dependents on H-1B visa. Your spouse and unmarried children under 21 years old are entitled to an H-4 visa and they can stay as long as you maintain valid H-1B status.

H-4 dependents can attend school (elementary school through university) but cannot work except in very limited circumstances

Maybe. H-1B1 workers who have dependent parents or other household members may be able to bring those family members to the U.S. with a B-2 visa for Cohabiting Partners, Extended Family Members and Other Household Members Not Eligible for Derivative Status. The B-2 applicant must be able to show they have a foreign residence they don’t wish to abandon, they are coming to the U.S. to reside temporarily with the H-1B1 worker, and that they cohabit or have lived with the H-1B1 worker for an extended period of time.

H-1B1 workers can also bring domestic workers who work for them abroad to the U.S. on a B-1 visa.

No, spouses of H-1B1 visa holders cannot accept employment in the US. They may work in the US only if they qualify for a work visa on their own. However, they can enroll and attend schools in the U.S. without obtaining a student visa.

The H-1B1 Visa does not support the doctrine of dual intent, therefore once you have begun the permanent resident process you may not be able extend your H-1B1 status. However, you can try to apply for a change of status to a regular H-1B during this process.

Yes. If you truly intend to pursue a Green card, you may need to first switch to a regular H-1B visa and then proceed with your green card application process.

Generally, as with the regular H-1B, physicians from Singapore and Chile may be granted H-1B1 status to conduct research, teach and provide patient care. Patient care can only be provided if the physician has the appropriate state license, has the FLEX/USMLE examination and has obtained ECFMG certification.

No, Premium Processing is not currently available for H-1B1 petitions.