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In general, H-1 visas allow for foreign nationals who are employed by a United States company in a specialty occupation to come to the United States. It is required that the company first complete a labor condition application (LCA) before the foreign national applies. Specifically, H-1B1 visas are for nationals of Singapore or Chile who will come to the United States for a specialty occupation. Each year, 1,400 individuals from Singapore and 5,400 individuals from Chile can come to the United States, for a total of 6,800 H-1B1 visas for principal visa holders. If the cap of H-1B1 visas is not met, the leftover number of visas is added to the total limit of H-1B visas between October and November of the next fiscal year. This visa status is specifically available through Free Trade Agreements (FTA), and thus is unique to these two countries. Employers of H-1B1 individuals must first file a labor condition application (LCA), which then must be certified by the Department of State (DOS) and the Department of Homeland Security (DHS). Outside of the labor condition application (LCA), a petition is not needed for an H-1B1 visa. Once the labor condition application has been approved, individuals may apply at the consulate in their country. Typically, H-1B1 status is valid for one year, but it can be extended in 1-year increments.
The requirements for H-1B1 visas are similar to those of H-1 visas.
Foreign nationals applying for H-1B1 visas must be working in a specialty occupation. Specialty occupation can be defined as a position in which an individual must theoretically and practically apply specialized acquired knowledge, and for which a bachelor’s degree or the equivalent is necessary. Specialty occupations can be in a variety of fields, including architecture, mathematics, engineering, and others. The H-1B petition must include documentation that proves the position qualifies as a specialty occupation.
A specialty occupation must fit one of four requirements;
If using the first requirement, the H-1B1 petition should include details on the job description, particular job duties, and the size of the employer. For the second, third, and fourth requirements, evidence that other employers in the industry require degrees for similar positions and evidence that the employer usually requires degrees, should be provided such as through job postings, descriptions of positions, and letters.
The foreign national must also meet requirements in order to perform a specialty occupation under H-1 status. A foreign national may qualify if they have a state license allowing the individual to practice their occupation if it is required, or a bachelor's degree (or experience and previously held job positions equivalent to a bachelor’s degree in the specialty). Likewise, the foreign national must meet one of the following requirements;
The H-1B1 petition should include supporting documentation to prove that the foreign national meets these requirements. If the state license is temporary, the H-1B1 visa will be valid only for the duration of the license or for a year, whichever is longer, unless the foreign national can perform the same duties if they had a permanent license, or if the state has different requirements for the license. If an individual is applying for an H-1B1 visa without a degree, evidence of how the individual’s experience and background are equal to a bachelor’s degree or higher should be provided, such as details on training or courses, work experience, and other education. Finally, individuals may not be self-employed or independent contractors.
The duration of stay for an H-1B1 visa is for one year for nationals from Singapore and Chile, although their visa may be valid for up to 18 months. Status can be extended for a year at a time. If an individual's employment ends, the individual and their dependents will have a 60-day grace period or until the end of their status (whichever is shorter) to depart from the United States.
H-1B1 holders can not exercise dual intent like H-1B holders. However, unlike other visas, such as the B, H-3, and J-1 visas, the standard of temporary stay is less stringent for H-1B1 holders. Thus, it should not affect an H-1B1 individual’s application or status if they were to apply for permanent residency.
H-1B1 employers must have the right to control their employees, be able to prove the existence of an employer-employee relationship, and have a Revenue Service Tax identification number. They may hire individuals who qualify as H-1B1 employees part-time or full-time. If the relationship with the individual is terminated before the end of the individual’s authorization status, the employer must pay for the cost of transport home.
Employers are not allowed to file multiple H-1B petitions for the same individual in a year. There are some companies whose H-1B employees do not count towards the yearly cap limit, such as if the individual’s employer is a university, qualifying type of non-profit organization, or governmental research organization.
Most importantly, employers must file a labor condition application (LCA) for H-1B employees. The requirements for employers of H-1B and H-1B1 employers are the same with the exception of a few rules that only apply to H-1B employers. The labor condition application (LCA) requires the employer to agree to certain requirements, such as paying the H-1B1 worker the required wage, offering H-1B1 workers the same benefits as United States workers, offering H-1B1 workers the same work conditions as the United States Workers, giving notice of labor disputes, and giving notice of the hiring of a foreign national. They must also keep detailed files and evidence that they have upheld these requirements. Likewise, employers must pay all of the required fees associated with the petition and must give the H-1B1 employees a copy of the labor condition application (LCA) once it is certified. Employers are also responsible for sharing any changes in employment status with the United States Citizenship and Immigration Services (USCIS).
There are certain attestations that only H-1B dependent employers or willful violators must agree to, including not displacing United States workers, rules regarding third-party workplaces, and recruiting United States workers. However, employers of H-1B1 workers can be sanctioned for displacing a United States worker 90 days before or 90 days after hiring an H-1B1 individual if they do not follow a requirement or willfully misrepresent their actions. To read more about the labor condition application (LCA), please read the article found here.
However, H-1B1 individuals cannot use the portability rules, allowing for workers who previously have held H-1B status to change employers and continue working as soon as the new employer files a petition. This allows individuals to keep their employment authorization, even before the new employer’s petition has been certified.
The application process for H-1B1 visas is much different from that of H-1B visas, as H-1B1 individuals do not need a petition in order to apply. However, the employer must file a labor condition application (LCA). The labor condition application (LCA) can take a while to file due to the necessary information, though it only takes a week to certify. Once the employer has filed the labor condition application (LCA) with either H-1B1 chile or H-1B1 Chile annotated on the form, and sent the foreign national a certified copy, the foreign national may begin the visa application process.
Individuals may apply directly at their consulate once the labor condition application (LCA) certification is complete. Individuals should consult directly with their consulate to be sure of any requirements it may have. Before scheduling an interview time, individuals should fill out the DS-160 form, or, the Nonimmigrant Visa Application, submit their photo to specification, and pay the required fee. The time it takes to schedule an interview and process an application after an interview usually differs depending on the location and time of the year. At the consulate, individuals must present the certified and annotated labor condition application (LCA), a letter of employment from the employer (with details such as job duties, salary, benefits, duration of the position, details of the employer, etc.), proof of educational qualifications and occupational qualifications, proof that the individual will stay in the United States temporarily, and proof that the individual has paid all of the required fees. The DS-160 form confirmation page is also required at interviews and sometimes a copy of the individual’s photo. After the interview has been completed, some applications may need additional processing, lengthening the time for approval.
H-1B1 holders may arrive in the United States 10 days before their start date and may leave up to 10 days after their end date. Individuals should make sure to have their passports, visas, and any other necessary documentation when they arrive.
While a petition is not necessary for an H-1B1 application, it is necessary for a change of status or a change of employer. In these cases, I-129 forms, or, a Petition for a Nonimmigrant Worker, must be submitted. The H-1B filing fee, ranging from $750-$1,500 must also be paid.
The required documents and forms for the H-1B1 visa include:
The processing timeline for an H-1B1 visa depends on the consulate, time of year, and other variables ranging from a few weeks to a few months. The time it takes for the employer to submit and receive a certified labor condition application (LCA) can also greatly impact the timeline.
There are fewer fees for the H-1B1 visa than for the normal H-1B visa. However, when applying for a change of status or a change of employer while already in the United States, many of the same H-1B fees apply to H-1B1 individuals and employers.
While there are limitations to the number of H-1B1 visas that can be issued each year, with different caps for Singapore and for Chile, H-1B1 visas do not have the same wait time as an H-1B visa. Generally, only those applying for H-1B1 visas for the first time count for the yearly limit. Individuals with extensions do not count towards the limit (unless they have filed more than 5 extensions) and dependent family members, including spouses and children, do not count. According to data, H-1B1 visas typically do not meet their cap. Meanwhile, H-1B visas can be very difficult to receive and can take a great deal of time due to the fact that there are many applicants and a cap of 65,000 a year. In fact, on the first day that individuals can file for an H-1B visa, the cap is typically reached.
Dependents, including spouses and children, do not have to be citizens of Singapore or Chile in order to apply for a dependent H-4 visa. However, they are not allowed to work while in the United States although they may attend school. Some H-4 individuals can apply for work authorization, however, this is only for dependents of specific H-1B principals, not dependents of H-1B1 principals.
In some cases, yes. For individuals who work as disaster relief claims adjusters from Singapore and Chile, and physical therapists and agricultural managers from Chile, credentials besides degrees may be accepted. Management consultants from Singapore and Chile may present a degree that is unrelated to their area of specialty.
TN visas are specifically for individuals from Canada and Mexico. Like the H-1B1 visa, this type of visa was created through a treaty, specifically the North American Free Trade Agreement (NAFTA). Under the North American Free Trade Agreement (NAFTA), foreign nationals from Canada and Mexico can come to the United States for employment if they are professionals. Certain professions are allowed under the North American Free Trade Agreement (NAFTA). A TN petition can be valid for three years. Extensions are allowed for TN visas and new periods of status can be granted if an individual applies for one at a consulate abroad or at a port-of-entry. TN visa holders can also bring their dependents, including children and spouses. These individuals will be issued TD visas.