H-1B1 for Professionals from Chile & Singapore
The H-1B1 visa is a temporary nonimmigrant visa created by treaty for Singaporean and Chilean professionals to work in a specialty occupation in the U.S. This visa category is nearly identical to the H-1B visa category, plus a few benefits for Chilean and Singaporean nationals. Arguably the most important advantage compared to the H-1B visa, which generally requires an annual lottery to allocate a limited number of visas, is the ability to readily apply for an H-1B1 visa or status without a lottery.
To qualify for an H-1B visa or status, U.S. employers must establish that their current or prospective employee applicants meet the following criteria:
- Specialty Occupation: The applicant must be entering the U.S. to perform services in a specialty occupation. A specialty occupation is a job which ordinarily requires at minimum a U.S. Bachelor’s degree or the equivalent foreign education or work experience (i.e. 3 years of work can equate to 1 year of higher education) in a specific field. Using the Occupational Information Network (O*NET) , search for the occupation which equates to the job by comparing the actual job duties to the Tasks listed for each occupation, and then review the “Education” to determine if the occupation ordinarily requires a Bachelor’s degree.
- Qualifying Education:The applicant must possess the requisite education or equivalency in an area of concentration that qualifies them for the specific field required by the specialty occupation. The international hire can have a combination of U.S. and foreign education as well as relevant work experience, which is equated to a U.S. Bachelor’s degree or higher. Typically three years of relevant on-the-job experience equates to one year of education. In the Occupational Outlook Handbook , check under the “How to Become One” tab for the occupation to determine the qualifying education. For example, qualifying technology occupations commonly accept a Bachelor’s degree in computer science, engineering, or a related field, whereas the occupation of pilot generally requires a Bachelor’s degree but in any field (i.e. not a specific field) and therefore does not qualify.
- Job Offer:An offer of employment from a U.S. employer is a prerequisite for obtaining an H-1B visa or status. Self-employment is not permitted, and an employer/employee relationship must be established through control, which also commonly means employee ownership of 50% or greater is scrutinized.
- DOL Requirements: The employer must also file a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL) and meet Notice of Filing and other Public Access File requirements. The employee must be paid the prevailing wage which is based upon the area of intended employment, occupational classification, and wage level (i.e. entry level or more advanced). Prevailing wages may be found in the Foreign Labor Certification Data Center.
- Job Offer and LCA – A U.S. employer must offer a qualifying job to the Australian citizen and submit an LCA to the DOL for certification. The LCA attests that the employment conditions meet the prevailing wage requirements discussed above. A Notice of Filing and other Public Access File requirements must be met, with which an experienced business immigration attorney can assist.
- If the prospective employee is in the United States and does not wish to travel internationally, the employer can file a Form I-129 Petition for a Nonimmigrant Worker with the certified LCA and required evidence with the United States Citizenship and Immigration Services (USCIS). The approval issued by USCIS does not generally permit international travel without abandonment of the approval, with limited exceptions.
- If the prospective employee can travel internationally, applying with the certified LCA and required evidence for an H-1B1 visa directly with a U.S. Consulate in a country of residence or citizenship is more common. This is another benefit to the H-1B1 for Chilean and Singaporean citizens relative to the H-1B visa, which requires a USCIS approval before applying for a visa at a U.S. Consulate.
The initial validity of the H-1B1 visa is eighteen (18) months (i.e. 1.5 years), with the possibility of extensions. Comparatively, the H-1B visa may be approved in three-year increments up to a general maximum of six years.
Spouse and Unmarried Children under 21
H-1B1 visa holders can bring their spouses and unmarried children under 21 years of age to the U.S. These dependents can apply for H-4 visas with proof of relationship to the H-1B1 visa applicant and can attend public or private schools or University but are not generally authorized to work in the U.S.
Green Card Pathway?
H-1B Specialty Occupation visa holders often pursue permanent residency through a PERM Labor Certificationbased immigrant petition by a U.S. employer under the EB-2 or EB-3 immigrant preference categories.
The above is informational and not intended to be legal advice. Please consult with an experienced business immigration attorney on your specific facts and circumstances before proceeding with any U.S. immigration strategy.