October 22, 2014 Douglas Lightman

The H-1B1 Visa:  What You Need To Know

The H-1B1 visa is a nonimmigrant visa available to citizens of Chile and Singapore.

Under the US-Chile and US-Singapore Free Trade Agreements, US employers may employ individuals in specialty occupations, for a specified period of time. The number of H-1B1 visas cannot exceed 1,400 for Chile, or 5,400 for Singapore in any given year, but this limit is set aside from the overall H-1B cap. The yearly cap of H-1B1 visas, as of the posting of this blog post has never been filled.

Like the H-1B visa, the H-1B1 is available to professionals within certain “specialty occupations.” This is an occupation which requires theoretical and practical application of specialized knowledge in fields such as engineering, mathematics, physical and social sciences, medicine, education, business specialties, accounting, law, theology, arts, marketing, media, finance, technology, etc.

In essence, a specialty occupation is a position that requires a bachelor degree or its equivalent in a specific field or related for entry into the position.

Unlike the H-1B visa, H-1B1 nonimmigrant professionals are admitted for a one-year period renewable indefinitely, provided the alien is able to demonstrate that he or she does not intend to remain or work permanently in the United States.

This is different from H-1Bs, which are available for a maximum of 6 years, but do not require a showing of nonimmigrant intent. H-1B1 professionals are also not subject to the “Portability Rule,” a rule that allows H-1B holders to change employers once the USCIS receives the beneficiary’s transfer petition submitted by a new employer.

The H-1B1 also shares some characteristics to an E-3 visa. Like an E-3, the H-1B1 is a bit less burdensome to prepare than an H-1B, and generally does not require filing an I-129 petition with the USCIS (except when seeking to change to an H-1B1 from another nonimmigrant status without leaving the US).

This is because like an E-3 visa, E-2 visa, or TN visa (for Mexicans only), the H-1B1 applicant may apply for the visa directly at a U.S. consulate abroad without prior USCIS petition approval.

How to prep an H-1B1 visa application

In addition to paying the relevant visa fee and submitting your DS-160 application online with the US consulate, an H-1B1 application will entail the following:

Proof the applicant qualifies for the “specialty occupation”: A beneficiary must provide documents such as degrees, diplomas, transcripts, work experience letters, and/or evaluations that can establish they possess a minimum of a bachelor degree or equivalent in a specific field that is related to the specialty occupation. In addition, the Petitioner must explain how the degree requirement is connected to the position and how the duties are specialized and complex.

A certified Labor Condition Application: A Labor Condition Application (“LCA”) is an attestation submitted with the US Department of Labor by the employer that captures details related to the assignment, like the following: occupation classification; employer name and address; location(s) of employment; offered wage; and prevailing wage.

An LCA is an attestation by the employer that the position will receive a salary equal to or greater than the prevailing, and that the employer will maintain working conditions that will not adversely affect the working conditions of similarly employed U.S. workers.

The LCA must be certified and signed prior to submission of the E-3 application.

Documents evidencing employment: This might consist of a job offer letter from the employer, copies of any written contracts between the petitioner and beneficiary, and/or a summary of the terms of the oral agreement under which the beneficiary will be employed. It might also include evidence of the kind of work that the beneficiary will be involved with.

Proof that the beneficiary’s stay in the US will be temporary: Unlike an H-1B, an H-1B1 professional must demonstrate nonimmigrant intent. This can be done by showing evidence that they are maintaining a residence abroad, and that they have no intention of terminating that residence. The treaty agreements with Chile and Singapore provide for the temporary entry of professionals into the United States.

Temporary entry is defined in both agreements as “an entry into the United States without the intent to establish permanent residence.” Those reviewing the application must be satisfied that the proposed stay is temporary, meaning it has a reasonable, finite end that does not equate to permanent residence.

The circumstances surrounding an application should clearly and convincingly indicate that the alien’s temporary work assignment in the United States will end predictably and that the alien will depart upon completion of the assignment.

For more information on the H-1B1 visa, contact Lightman Law Firm at (212) 643-0985 or submit a consultation request online.

Lightman Law Firm was recently honored as New York’s 2014 Immigration Law Firm of the Year by Acquisition International. Additionally, founding attorney, Douglas Lightman, was named a “Rising Star” by SuperLawyers.com. Lightman Law Firm also carries a 4.9 rating on Google Reviews.

Douglas Lightman

The award-winning Lightman Law Firm was founded by Douglas M. Lightman, Esq. Mr. Lightman has extensive experience in immigration law and international matters through both work and personal experience.Prior to forming Lightman Law Firm, Mr. Lightman spent several years at an international tax consulting and compliance firm where he focused on international tax consulting and cross border transactions. Mr. Lightman is a United States trained lawyer who received his law degree from Brooklyn Law School and is a member in good standing of the Bar of the State of New York and a member of the American Immigration Lawyers Association, the world's largest organization of immigration lawyers.To discuss your possible case with Mr. Lightman or another immigration lawyer from Lightman Law Firm LLC, call (212) 643-0985 or fill out the consultation request form on your right. A representative of our firm will contact you shortly upon review of your request.