Mark A Ivener, A Law Corporation

H-1B for Singaporeans & Chileans

H-1B1 Visas for Professionals of Singapore & Chile

Who is Eligible?

The U.S. Free Trade Agreements (FTA) with Chile and Singapore, which took effect on January 1, 2004, both contain provisions that permit temporary entry of businesspersons from Chile and Singapore, respectively, to the U.S. to facilitate free trade opportunities. The FTAs establish four categories of nonimmigrant entry for business persons, including: business visitors (B-1), traders/investors (E1/E2), intra-company transferees (L-1), and nonimmigrant professionals (H-1B). The nonimmigrant professionals category is actually split into two categories, the H-1B and H-1B1. The H-1B category encompasses the current H-1B program, whereas within the H-1B1 category, 5,400 visa numbers will be available to Singapore and 1,400 visa numbers to Chile. The H-1B1 visas will be renewed annually, with new attestations required every third year. The numerical limitations for the FTAs are set aside within the overall H-1B Program cap. Nationals of Chile or Singapore may apply at consular sections around the world for the nonimmigrant H-1B1 visa, at which time evidence of eligibility for H-1B1 classification must be made. Qualification requires professions to meet the definition of “specialty occupation” as set forth in the respective FTA or submit proof of alternative credentials as set forth in the respective FTA. The prevailing wage requirements would also apply to the H-1B1 subset. A job offer letter from the employer, proof of labor attestation (certified ETA 9035 or 9035E), proof of payment of any special fee, if applicable, and payment of the MRV fee, are all also required. The employer of an H-1B1 professional is not required to submit a petition to DHS as a prerequisite for classification or visa issuance. The FTA also requires all Singaporean and Chilean H-1B1 professionals to overcome the presumption of immigrant intent, a higher threshold than H-1B visa holders meet.

How to Apply

A Labor Condition Application (LCA), which is discussed at the end of this Chapter, (see section E., infra), must first be filed with the U.S. Department of Labor (DOL). Once the LCA is approved, the employer fills out a Form I-129, Petition for Nonimmigrant Worker, and the supplemental form, along with supporting documentation, including the approved LCA. The forms and documentation are then filed with the U.S. Citizenship and Immigration Services (USCIS) Service Center having jurisdiction over the city of intended employment. The prospective U.S. employer files the petition along with the appropriate filing fee. Once the USCIS approves the H-1B petition, a visa may be issued at a U.S. Consulate.

Documentation Requirements

For those individuals seeking to perform temporary services in a specialty occupation, the petition must be filed with the following documentation:

  1. An approved LCA from the DOL
  2. Documentation that the job qualifies as a specialty occupation. A “specialty occupation” is defined as one that requires the theoretical and practical application of a body of highly specialized knowledge and the attainment of a baccalaureate degree or higher as a minimum requirement for entry into the occupation in the United States. The employer may meet this requirement by showing that the degree is normal in the industry or common at a similar place of employment; that the nature of the specific duties are so complex or unique that they can be performed only by an individual with the required degree; or that the employer normally requires a degree or its equivalent for the position.
  3. A copy of the foreign national’s U.S. college degree (bachelor’s, master’s or Ph.D.) and/or foreign degree with evidence that it is equivalent to a U.S. baccalaureate degree or higher. Evidence of education, specialized training, or experience that is equivalent to a U.S. baccalaureate degree may also be submitted to fulfill this requirement. To determine equivalency to a baccalaureate degree in the specialty, three years of specialized training and/or work experience must be demonstrated for each year of college level education that the foreign national lacks. To show equivalency to a master’s degree, the foreign national must have a baccalaureate degree and at least five years of progressively responsible experience in the specialty.
  4. A copy of any required license to practice the occupation in the state of intended employment.
  5. A copy of any written contract between the employer and the foreign national or a summary of the terms under which the foreign national will be employed if there is no written agreement.

In the event that the employer terminates the employment of the foreign national prior to expiration of the H-1B visa, the employer is responsible for providing return transportation of the foreign national to his or her last place of foreign residence.

Duration of the Visa

An H-1B is approved by USCIS for an initial period of up to three years. Generally, the maximum term of an H-1B visa is six years, including extensions, with the following exceptions.

Extensions beyond the six year limitation:

The American Competitiveness in the 21st Century Act (AC21), approved in 2002, provides for extension of H-1B status beyond the 6-year limit in two circumstances:

  1. USCIS may extend H-1B status in one-year increments for any H-1B foreign national who is the beneficiary of an employment-based immigration petition or labor certification which has been filed at least 365 days prior. Extensions may continue annually until the foreign national’s adjustment is adjudicated. Thus, whether the alien labor certification or the immigrant petition is pending or approved, the H-1B visa holder in question may take advantage of the extension provision. Furthermore, this provision applies regardless of country of origin.
  2. A beneficiary of an employment-based first, second or third preference petition who is eligible to adjust in the US, but is required to wait for a visa number due to the per-country limits, may obtain three year H-1B status extensions until the adjustment of status is decided. This new provision applies to persons subject to the State Department’s backlogs due to the retrogression in the numbers of available visas, and is especially relevant for foreign nationals born in India, China, Mexico or the Philippines, who have the longest backlogs for immigrant visa processing.

H-1B Portability

Visa portability provisions in AC21 allow a nonimmigrant foreign national who was previously issued an H-1B visa or otherwise accorded H-1B status to begin working for a new H-1B employer as soon as the new employer files a “non-frivolous” H-1B petition for the foreign national. A “non-frivolous” petition is one that is not without basis in law or fact. Since portability provisions apply to H-1B petitions filed “before, on, or after” enactment, all foreign nationals who meet the requirement benefit from the provisions. The portability provisions described in AC21 relieve the foreign national and the employer from the need to await approval notification from the USCIS before commencing new H-1B employment.

Labor Certification Application

There have been major changes in the Immigration laws and regulations affecting the H-1B visa for professional employees. In particular, the U.S. Department of Labor (DOL) has recently published implementing regulations under the American Competitiveness in the Twenty-First Century Act (ACWIA). Some particularly onerous requirements have been placed on “H-1B dependent employers”, but the regulations also provide guidance on issues affecting all employers.

Spouses and Minor Children

A spouse or unmarried child of an H-1B visa holder is entitled to an H-4 visa for the same length of stay as the principal. The spouse and dependent minor children cannot accept employment, but may attend school in the United States. In addition, domestic workers of an H-1B visa holder can receive a B-1 business visa and obtain work authorization.