H-1b1, A Feasible Alternative To H-1b For Chileans And Singaporeans
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. These two FTAs, and the newly established H-1B1 nonimmigrant visa category, became effective on January 1, 2004.
Eligibility Criteria/Qualifications for H-1B1
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 status you must show that:
* The position offered 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 bachelors 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 US employer. 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.
H-1B1 Quota for Chile and Singapore
The H-1B1 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 are 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.
Application Process for an 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 a visa.
You can apply for the H-1B1 visa directly at the US Consulate in your home country by submitting the appropriate nonimmigrant visa application along with an employment offer letter, a certified Labor Condition Application and the relevant supporting documents.
You may generally obtain your H-1B1 visa within a week (or less) of your interview at a US Consulate.
Duration and Extension of your Stay on an H1B1:
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 00004000 cannot exceed the validity period of the LCA. When entering the US as, or changing status to, H-1B1 nonimmigrant professional 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 /Children of H-1B1 Visa Holders. May spouses work?
Only spouses and children of H-1B1 work 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.
Change of status to H-1B1 if you are already in the US:
If you are already in the United States on 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 non-immigrant status.
To apply for a Change of Status your employer must file a Form I-129, accompanied by:
* Letter from U.S. employer stating the activity to be engaged in, the anticipated length of stay and the arrangements for remuneration;
* Evidence that education requirements are met; and Labor Conditions Application (LCA).
Dual Intent
One of the minor drawbacks of the H-1B1 is that, unlike the H-1B visa, the H-1B1 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 in H-1B1 status.
Medical Doctors and the H1B1:
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.
A Recap of the Pros and Cons of H-1B1:
Similar to the TN visa for Canadian and Mexican citizens, one of the greatest advantages of the H-1B1 category is that an H-1B1 beneficiary does not need to first obtain approval of an H-1B1 Petition from the USCIS.
The H-1B1 visa category shares the same disadvantages of the TN category, in that H-1B1 visas are only valid in one-year increments and 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 beneficiaries must carefully plan out the process and the timing for filing any petitions and applications. Because the doctrine of dual intent does not apply the H-1B1 beneficiary generally may not pursue permanent residence in the United States while in H-1B1 status. 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.
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