H-1B1 Visa Roadmap

The H-1B1 classification has many similarities with the H-1B visa and is sometimes referred to as the “Fast Track H-1B.” It was created for nationals of Chile and Singapore and is based on trade agreements with the U.S. Like the H-1B, the H-1B1 is available to professionals coming temporarily to the U.S. to fill a U.S. employer’s “specialty occupation” position. A specialty occupation position requires the employee to hold at least a bachelor’s degree or its equivalent and to apply specialized knowledge to perform the duties and responsibilities of the position. Specialty occupations generally include positions in accounting, architecture, arts, education, engineering, law, mathematics, medicine, and management and executive positions where a specific education is required to perform the duties. The H-1B1 category for Chilean and Singaporean nationals also allows for alternative credentials in certain occupations.

Just as with H-1B visas, there are numerical limits on the number of foreign professionals who can obtain H-1B1 status each year. Those limits are set at 1,400 for Chilean nationals and 5,400 for applicants from Singapore. However, since these limits are never met, H-1B1 visa applicants don’t have to take part in a lottery process as H-1B applicants do.

It is important to know that, unlike the H-1B classification, H-1B1 status does not allow for dual intent (i.e., the pursuit of permanent residence in the U.S.). On the other hand, as long as the applicant continues to qualify, H-1B1 status can be extended indefinitely in one-year increments and there is no 6-year limitation as with H-1Bs, and no requirement to maintain a foreign residence. All this makes the H-1B1 category a viable alternative for professionals from Chile and Singapore.

H-1B1 Requirements

The foreign national (FN) and the U.S. employer must meet the following basic requirements:

  • The U.S. employer is extending the FN a temporary job offer for a specialty occupation position.
  • The FN possesses the necessary credentials: (a) A minimum of a bachelor’s degree in the field of the specialty occupation from an accredited U.S. school; (b) a foreign degree that has been evaluated to be the equivalent of such U.S. degree; or (c) verifiable and recognized education, experience, or training found to be the equivalent of a bachelor’s degree or higher in the field of the specialty occupation, along with a relevant history of increasingly responsible positions. As a rule of thumb, three years of relevant work experience is the equivalent of one year of university education.
  • Note: The H-1B1 trade agreements with Singapore and Chile allow for alternative credentials in the professions of Disaster Relief Claims Adjuster and Management Consultant for both Chilean and Singaporean nationals, as well as Agricultural Managers and Physical Therapists for Chilean nationals only (discussed below under Strategies/Options).
  • The U.S. employer has enough work to employ the FN for the entire duration of the requested H‑1B1 status (one year).
  • The U.S. employer must obtain a certified Labor Condition Application (LCA) from the Department of Labor (DOL) before the FN can apply for an H-1B1 visa, which can be used for at least one renewal application during its validity period.

The Federal Identification Number (FEIN) Verification Process

Employers who have never filed an H-‑1B1 petition must ensure that their federal employer identification number (FEIN) is registered and verified. This process includes providing the organization’s SS-4 letter, on which the IRS assigned their FEIN, to the DOL. This allows the DOL to confirm the FEIN belongs to the company and enter the information into DOL systems.

In lieu of that letter, employers may submit at least two documents from third parties showing the employer’s FEIN. These documents may include a tax return, IRS Form 941, a bank letter, or a state employment record. Once requested, the FEIN registration takes three to five business days to complete.

The Labor Condition Application Process

The U.S. employer must certify to the DOL that, in hiring the FN, it will protect similarly employed U.S. workers in the same geographic area. To this end, the employer electronically files Form 9035, or what is also known as a Labor Condition Application (LCA) with the DOL. The LCA is typically certified and returned in five to seven business days. This filing certifies:

  • The employer is paying the higher of either the wages that it pays its own similarly employed workers or 100 percent of the wages paid to similar workers employed in the same geographic
  • The working conditions of U.S. workers employed at the employment site are not adversely affected by the hiring of the
  • There is no strike/lockout at the worksite nor in the occupation for which a foreign professional is sought.
  • The employer has given notice to current employees that it is seeking to hire an H‑1B1 professional. This is done by posting a notice in two conspicuous places for 10 consecutive business days or providing communication to the designated collective bargaining representative if applicable. The employer may also qualify for an electronic notification, in certain

In addition, the employer must maintain a file that is open to the public – the “Public Access File” (PAF) – and follow through on the certification filed with the DOL or they are in violation of the law. Noncompliance can result in the employer being required to pay back wages and/or the imposition of civil monetary penalties.

Documentation

An I-129 Petition for a Nonimmigrant Worker filed with USCIS is only required for FNs who are already in the U.S. and wish to change or extend their status, or to change H-1B1 employers. In all other cases, the FN may skip the petition process and apply for a visa directly at the U.S. consulate in Chile or Singapore. In either case, the following documentation must be presented:

  • Certified Form 9035 LCA, annotated as either “H-1B1 Chile” or “H-1B1 Singapore.”
  • Job offer letter and employment agreement, containing a detailed description of the position offered, including job title, temporary nature of employment, specific job duties and responsibilities, and salary.
  • Evidence that the position qualifies as a specialty occupation.
  • Information about the U.S. company, such as corporate tax returns, financials, and company brochures or website excerpts.
  • Copies of the FN’s educational credentials, including transcripts, degree certificates, and education evaluations (where applicable).
  • The FN’s résumé and proof of any relevant job experience.

If applying at a U.S. consulate, this also includes:

  • Passport (valid for at least six months beyond the intended period of stay in the U.S.).
  • Nonimmigrant Visa Application, Form DS-160 confirmation page.
  • Proof of payment of the Machine Readable Visa (MRV) fee.

Admission

While the H-1B1 visa may be valid for up to 18 months, an initial stay is granted for no more than one year after which it can be renewed indefinitely in one-year increments, as long as the FN still qualifies and can demonstrate that they have no intent to live or work permanently in the U.S.

Extensions of H-1B1 status are only subject to the numerical limits when filed with a new labor condition application (LCA). A new LCA should be completed every two years, i.e., with every other H-1B1 renewal application. A timely filed H-1B1 extension allows the FN to continue working for 240 days past the I-94 expiration date while the application is pending.

Family

The H-1B1 worker’s spouse and unmarried children under the age of 21 are eligible to apply for H-4 status to accompany or join the H-1B1 principal in the United States. H-4 status allows the H-1B1’s spouse and children to attend school in the U.S., but they are not allowed to work.

Strategies/Options

License Not Required for Visa Approval

Unlike H-1B applicants, FNs applying for H-1B1 status do not have to be licensed in their occupation at the time of the visa application. It is sufficient if they comply with any state licensing requirements after they entered the U.S.

No Dual Intent

U.S. Immigration regulations make clear that H-1B1 status must be temporary in nature. However, H-1B1 holders are not required to maintain a residence outside the United States to demonstrate temporary intent.

Common Approval Issue: Does the Position Require a Bachelor’s Degree?

Just because the employer requires a bachelor’s degree for the position does not mean U.S. Immigration will agree. U.S. Immigration defines a “specialty occupation” as one that requires a theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum entry into the occupation. U.S. Immigration’s standards for a specialty occupation require that the position must meet one of four criteria:

  • A bachelor’s or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  • A degree requirement is common in the industry and for parallel positions among similar organizations or the particular position is so complex or unique that a degree is required;
  • The employer normally requires a degree or its equivalent for the position; or
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

Evidence commonly submitted to meet this requirement includes:

  • An excerpt from the Occupational Outlook Handbook about the position that specifically states a bachelor’s degree is a minimum requirement for the occupation;
  • Letters attesting that the degree requirement is common in the industry and parallel positions among similar organizations;
  • Employer’s organizational chart showing similarly employed individuals and copies of those individuals’ credentials evidencing they also possess a bachelor’s degree or equivalent; and
  • A detailed list of the position’s duties and responsibilities, including other positions in and outside the company with whom the foreign national will interact in performing the job.

As mentioned above, the H-1B1 classification allows for alternative credentials in the following professions:

  • Disaster Relief Claims Adjusters from Chile or Singapore must have a bachelor’s degree, Licenciatura degree, or Título Profesional and demonstrate completion of training in the appropriate areas of insurance adjustment, or three years of experience in claims adjustment and successful completion of specific training.
  • Management Consultants from Chile or Singapore must have a bachelor’s degree, Licenciatura degree, or Título Profesional, which may be in an unrelated discipline, as long as the applicant has three years of experience in a field or specialty related to the consulting agreement.
  • Chilean Agricultural Managers and Physical Therapists can also qualify with a combination of a post-secondary certificate requiring three years of study in the specialty and three years of experience in lieu of the standard degree requirements.

Legal and policy sources:

Immigration policies and regulations are complex and frequently subject to change. The information contained in this roadmap is intended to provide you with a general overview and may not address your particular circumstances and needs. Serotte Law will assist you with the application and documentation process and answer any questions you may have about the H‑1B1 classification. Request a consultation or give us a call at 888-875-8110.

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