Less than two decades ago, the United States entered into free trade agreements with Chile and Singapore, respectively known as:
- the United States-Chile Free Trade Agreement Implementation Act (Pub. L. 108-77); and
- the United States-Singapore Free Trade Agreement Implementation Act (Pub. L. 108-78).
The obvious advantage to these agreements is this: 1,400 Chileans and 5,400 Singaporeans each year do not have to directly compete––if they don’t want to––with the hundreds of thousands of prospective H-1B registrants participating in the H-1B lottery. Only 65,000 of those registrants will be granted an H-1B visa. Of the latter number, 6,800 slots are earmarked for nationals from Singapore and Chile through the H-1B1 program.
Note: each year an additional 20,000 H-1B slots are reserved for those who hold a Master’s or higher degree from a U.S. Institution of Higher Education.
Bottom line: H-1B1s are usually available for those who qualify, whereas H-1Bs are severely limited by the annual cap.
There are other advantages to the H-1B1 category. If you are an H-1B1 applicant, you can apply directly at the U.S. Consulate, which is a faster approach than waiting on USCIS. H-1B1s also have lower filing fees––significantly so if you apply at the U.S. Consulate. Also, H-1B1s are not subject to the H-1B 6-year cap. They are, however, subject to nonimmigrant intent requirements. If permanent residence is in the future plans, an H-1B is typically a better status.
If you are wondering whether the H-1B1 visa is right for you, your family, and/or your employer, we provide a brief overview of the program. The overview is not a substitute for legal advice, particularly to individual circumstances. If you have more immigration questions or want to get started on the H-1B1 visa process, contact Cascadia Cross-Border Law today.
What is the H-1B1 Program?
Generally speaking, the H-1B rules govern the H-1B1 program. The H-1B1 visa program, however, is not the same as the H-1B visa program. Here are some ways the programs vary:
- Nationality. Both visas are for temporary professional work, but the H-1B1 visa is limited to citizens of Chile and Singapore.
- Licensure. The H-1B visa requires licensure before the visa is granted while the H-1B1 visa does not require it.
- Fees. There are some differences with respect to special and statutory fees aside from the filing fees, and depending on if the application is filed with USCIS or with Department of State.
- Temporary Intent. A significant difference pertains to temporary intent; the H-1B visa allows for dual intent, but the H-1B1 visa does not.
The H-1B1 program is a nonimmigrant category for professionals. Its creation is based on trade agreements with Chile and Singapore. The E-3 program with Australia is similar, as is the TN program with Canada and Mexico but to a lesser extent.
H-1B1 Licensing Requirements
For many positions in the United States, licensure is a prerequisite. As such, temporary work visa programs like the H-1B require petitioners to prove licensure prior to the issuance of a temporary work visa.
Under the H-1B1 nonimmigrant program, licensure is treated as a post-entry requirement subject to enforcement by the appropriate state or other sub-federal authority. The law further provides that an H-1B1 applicant should not be denied a visa based solely on the absence of a current license to practice in the United States. That said, H-1B1 applicants must prove their professional occupation. Examples to do so include:
- Relevant diplomas or certifications
- Proof of education
- Employer letters.
There is one caveat for H-1B1 applicants in the healthcare field. If you seek classification as an H-1B1 visa-holder (other than physicians), you must provide certification establishing competency in the specific area. Certification must be through the Commission on Graduates of Foreign Nursing Schools (CGFNS) or another qualifying organization approved by the U.S. Government for such purposes. Absent this certification, an H-1B1 applicant can be denied the visa.
Fees Associated with H-1B1
Fees are subject to change and vary. They are determined in part by where you apply for an H-1B1 visa: in your home country or while in the United States.
Applying in Home Country
If you apply for an H-1B1 visa in your home country, then you will do so through the consulates in Singapore or Chile. The two primary visa fees associated with H-1B1 applications are:
- Visa Application Fee. All H Visa classifications currently require a fee in the amount of $190.00; and
- Visa Issuance Fee. This fee is commonly known as the reciprocity fee and is determined by your location.
The potential for special fees related to certain extensions or initial classifications exists. These potential fees are required only if they exist under the H-1B program. Currently, no special fees have been or are being imposed on H-1B1 visa applicants.
Also, an I-129 petition isn’t needed for application at the Consulate, which means applicants can avoid the USCIS filing fees.
Applying in the United States
If you apply for an H-1B1 visa while in the United States because you either seek a change of status or an extension of stay, additional fees apply. These fees are paid by the employer. The most significant fee is a “training fee” pursuant to American Competitiveness and Workforce Improvement Act (ACWIA). Under the ACWIA, employers with 26 or more full-time employees must pay a $1,500 fee while employers with 25 or fewer full-time employees must pay a $750 fee.
To note, if you were applying for an H-1B and not the H-1B1, your employer may also be responsible for a Fraud Prevention and Detection fee in the amount of $500.
USCIS petitions require the I-129 form, for which there is a standard $460 filing fee.
USCIS’s Premium Processing program does not currently extend to H-1B1 petitions, as it does to H-1Bs. Premium Processing allows petitioners to pay $2500 (as of now) and obtain initial adjudication in 15 days. H-1B1s are not listed as an eligible category, and some applicants have had their applications returned. The program is routinely used with H-1B petitions, despite the high cost.
Temporary Intent Required
The H-1B petitioner can seek a temporary work visa while also having the intent to seek permanent residency in the United States. So, for example, an H-1B work visa is issued to a foreign national. He or she then travels to the United States (with or without family members) to work. While in the United States, the H-1B visa-holder can seek a “green card”.
An H-1B1 holder, on the other hand, must maintain nonimmigrant intent as a condition of the status, which makes pursuing permanent immigration at potential odds with the status.
Both free trade agreements that established the H-1B1 classification define “temporary entry” as “an entry into the United States without the intent to establish permanent residence.” The temporary period must be reasonable and have a definite end. Proof of temporary intent can be achieved, in part, by providing documentation identifying property holdings in your home country or other definite connections to Chile or Singapore. It can also be demonstrated by showing the temporary work assignment has its own established and predictable end.
The Department of State does allow that an intent to immigrate in the future, which is in no way connected to the proposed immediate trip, need not in itself result in a finding that the immediate trip is not temporary. An extended stay, even in terms of years, may be temporary, if there is no immediate intent to immigrate.
Even though temporary intent is required, the H-1B1 nonimmigrant professional is typically admitted initially for 18 months. One-year extensions are available via application to USCIS, and each extension must be accompanied by establishing temporary intent.
Who Qualifies for an H-1B1 Visa?
As already mentioned, you must be a citizen of Singapore or Chile to apply for an H-1B1 visa. But there are other qualifications, too, namely the requirement that the job qualifies as a “specialty occupation” and that the individual satisfies the occupation’s requirements.
As defined by INA §214(i)(3), specialty occupations are those that require:
- Specialized knowledge (as opposed to “highly” specialized knowledge required by an H-1B visa); and
- Higher education degrees, e.g., a bachelor’s or higher degree in the specific specialty (or its equivalent).
Examples of industries where specialized knowledge and higher education is needed include:
- Computer Science
Though a bachelor’s degree or equivalent is a minimum requirement, there are a few special exceptions built into the H-1B1 program. Certain professionals from Chile and Singapore may qualify based on “alternative credentials”. Specifically, Disaster Relief Claims Adjusters and Management Consultants from Singapore may qualify for H-1B1 status with specialized training combined with three years of experience––a bachelor’s degree is not required. Chilean nationals who are Agricultural Managers and Physical Therapists may qualify with a post-secondary certificate combined with three years of experience.
An H-1B1 visa is not appropriate for self-employment, and will not be awarded to an applicant applying as an independent contractor or freelance worker. H-1B1’s require employer sponsors.
Even if an individual qualifies for an H-1B1 visa, they may qualify for other visas, which may in some cases be more suitable.
What Should Employers Know About the H-1B1 Visa?
Employers must adhere to the procedures set out by law when sponsoring applicants for H-1B1 visas. These procedures are not far removed from the procedures required for H-1B classification. Perhaps the most important consideration for employers is the prevailing wage requirement. Employers are required to pay H-1B1 employees the greater of the prevailing or actual wage for the position. Calculating the applicable prevailing and actual wages for a position is a topic all to its own, but for this discussion, it is important that employers understand this overarching wage obligation. In a nutshell, employers are not allowed to hire foreign professionals at a lower rate of pay than U.S. workers.
- Job position. The employer must have a bona fide professional position open to a national of Chile or Singapore that meets the definition of a “specialty occupation,” even as it would if the application were for an H-1B.
- Labor Condition Application (LCA) Certification. The employer must obtain an LCA certification through the Department of Labor (DOL), using the ETA Form 9035 or ETA Form 9035E. The latter form guarantees, among other things, that:
- The salary paid to the temporary employee is the greater of the prevailing wage or the actual wage for the position;
- The work environment complies with U.S. law;
- Notice of filing procedures for the worksite are fulfilled;
- The employer will provide and keep updated company information, e.g., number of employees, job descriptions, and income information.
- Letter to the H-1B1 Application. Upon receipt of the certification, the employer will transmit a signed copy of the LCA certification (along with an job offer letter from the employer) to the prospective temporary employee.
Keep in mind, LCAs are valid for a period of three years. An H-1B1 visa will not be issued for a period that exceeds the LCA’s remaining validity period. It is important to plan extensions and new consular applications well in advance, to account for prevailing wage calculations and new LCA filings.
Once the employer provides the prospective temporary employee with the offer letter and the LCA certificate, the Chilean or Singaporean national can start the H-1B1 application process through the U.S. Consulates in their respective country. This will involve filing an online DS-160 application and scheduling an interview at the Consulate. Careful attention should be given to all questions on the application.
Once onboard, employers should also keep in mind that any significant change for an H-1B1 employee (e.g. promotion, location change), or with the sponsoring organization (e.g. merger/acquisition) may require prior immigration approval. H-1B1s are company-specific, location-specific, and position-specific. It is always best to understand the immigration consequences of making any kind of change, prior to doing so, so as to avoid violations of status.
H-1B1s do not have the same benefits of portability that H-1Bs have, as far as amending duties or changing employers goes. Advance planning is warranted.
One Final Note for H-1B1 Applicants
You don’t have to make the journey to the United States by yourself. Your family members (i.e., spouse and children under the age of 21 years) can obtain H-4 visas. While in the United States, they can enroll in academic studies but cannot seek employment. It is usually best to apply for the H-1B1 visa and H-4 visa at the same time to avoid any delays, but it is not required.