H-1B "Specialist/Professional" Nonimmigrant Visa (Employment)

8Overview

4MINIMUM REQUIREMENTS
4U.S. PETITIONER/EMPLOYER
4BENEFICIARY/EMPLOYEE
4PRACTICAL CONSIDERATIONS
4H-1B VISA "CAP" (NUMERICAL LIMITATION)
4H-1B EMPLOYER'S OBLIGATIONS AFTER APPROVAL

8Procedure

4PROCESSING TIME
4STEPS

8H-1B Labor Condition Application (LCA)

4Labor Condition Application (LCA) Attestations

8US CIS (INS) Filing Fee

4H-1B FILING FEE (ACWIA, "fraud prevention and detection" fee, premium processing fee)

8Additional H-1B Periods (including AC21)

4GENERAL
4AC21 104(c) "One-Time" H-1B EXTENSION
4AC21 106(a) "Filed LCA" H-1B EXTENSION

8H-1B "Portability" & Travel (including AC21)

4STANDARD H-1B FILING & TRAVELING OVERSEAS AFTER FILING
4AC21 H-1B "PORTABILITY" (New H-1B Employer/Petitioner Filing)

4Filing (a) during I-94 validity
4Filing (b) during "authorized stay" after filing

4AC21 H-1B "PORTABILITY" FILING & TRAVELING OVERSEAS AFTER FILING
4NEW H-1B EMPLOYER BUT OLD, VALID H-1B VISA IN PASSPORT

8H-1B-1 "Professional Worker" Category Visa  (Nationals of CHILE and SINGAPORE)

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8H-1B Updates

MINIMUM REQUIREMENTS:

The H-1B specialist worker visa is filed by the U.S. petitioner/employer who seeks the services of a professional for a period of 1-3 years (total of 6 H-1B years).  The H-1B specialist is an "employee" and the U.S. petitioner/employer must pay FICA taxes.  A "bona fide" job offer must exist (petitioner/employer provides services/products which is related to the H-1B employee's education/experience background, and provides a salary* commensurate with the position). A nexus must exist between the petitioner/employer's "business" + "specialist/professional" position offered + the employee/beneficiary's specialized/professional knowledge (i.e. Bachelor's degree [equivalent] in a specific major) + salary (commensurate with the "professional" position).  Government agencies that  review the application include the Department of Labor and the US CIS (INS), job offer advertisements are NOT required (no need to demonstrate that there are no qualified "U.S. workers").
*Salary:  Currently, the wage rate must be 95% of either the prevailing wage rate for the job/position offered (or the actual wage for the job/position) -- whichever is higher.

Updates:  November 22, 2004 With respect to the prevailing wage:  100% or higher (currently 95%), but for governmental wage surveys, four wage levels will be used instead of the current two wage levels (wage levels will be based on experience, education and the level of supervision).

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U.S. PETITIONER/EMPLOYER:

The U.S Petitioner/Employer can be organizations, companies, individuals, etc., (with Federal Tax ID numbers).  Start-up companies may be possible, and individual sole proprietor can also file -- however, keep in mind that the US CIS (INS) will determine if the employment is "bona fide."  The petitioner/employer may be able to function in an "agent/representative" capacity, but a traditional employer-employee relationship is the most common and favorably accepted by the US CIS (INS).  The US CIS (INS) indicates that the H-1B application should be filed by a company that actually controls the employee's work when the employee is paid by a Professional Employer Organization (PEO) that issues paychecks and handles administration.  However, a PEO could apply for an H-1B employee, as long as it is functioning not only in an "administrative" capacity.)  Multiple work sites also may be possible.

In general, the H-1B petitioner/employer has "control" over the H-1B employee, and is:

(1) a person, firm, corporation, contractor, or organization in the United States, and
(2) engages a person to work within the U.S., and
(3) has an employer-employee relationship where it may hire, pay, fire, supervise, or otherwise control the work of any such employee, and
(4) has an Internal Revenue tax identification number.

Note: Salary can be paid from another source, provided that the H-1B petitioner/employer has an employer-employee relationship.

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BENEFICIARY/EMPLOYEE:

Typically, the beneficiary/employee has a U.S. Bachelor's degree in a major which is customary for the offered "professional/specialist" job title/description.  If the employee has no degree, sufficient work experience or combination of education and work experience, may be possible to use, based on a credible ''degree evaluation."  In general, 12+ years of professional/progressive work experience can equal a U.S. Bachelor's degree.  An Associate degree + 6 years of prof./prog. work experience (all related) can equal a U.S. Bachelor's degree.  Foreign degrees can also equal a U.S. Bachelor's degree, but 3 year programs in some countries can cause problems, sometimes.  (Keep in mind that even if a "degree evaluation" is possible for the H-1B application, some procedures/types of immigrant "green card" applications have different rules.)
Additionally, even if the beneficiary/employee has a U.S. Bachelor's degree in a specific major, the offered "professional/specialist" job title may not be easily accepted by the Dept. of Labor and/or US CIS (INS).  The reason, in general, is that the government agencies sometimes will have difficulty accepting certain positions to be considered as "professional/specialist" level.  in this case, a different evaluation may be required to establish that the offered position is, indeed, a specialized/professional occupation.

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PRACTICAL CONSIDERATIONS:

1.  Employment may be part-time; possible to have concurrent employment (i.e., more than one employer).
2.  After six (6) years of H-1B, if individual leaves the U.S. for minimum of one (1) year, possible to apply for H-1B again (for a total of six years).  Additional time may be provided under specific circumstances (see below).
3.  The H-1B visa, like the "L" visa, has the concept of "dual intent."  In short, this means that an H-1B visa holder can, if possible, file for an immigrant "green card" application without being subject to intent problems (for example, an F-1 nonimmigrant student does not have "dual intent," meaning, filing an immigrant "green card" application while having the F-1 visa, can sometimes cause serious problems).
4.  Employer or employee may terminate the employment relationship.  (Note: This does not mean that the H-1B holder can work for another employer without   first filing for a new H-1B application, or in some cases, file and receive authorization.)
5.  Taxes -- must be paid for the stated prevailing wage (amendments may be possible) that is offered.
6.  Does the beneficiary/intended employee already have H-1B visa status?  It may be possible to immediately begin employment with a new (or concurrent) H-1B petitioner/employer using the AC21 H-1B "Portability" Rule (see below.)

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IMPORTANT:

A nexus between the employer's job offer and intended employee's background (education or equivalent) is  needed.  Because the position is also specialist and professional in nature, appropriate salary must be offered.

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H-1B VISA "CAP" (NUMERICAL LIMITATION):

As of October 1, 2003, the H-1B numerical limitation has decreased to 65,000 from 195,000.  The H-1B visa "cap" for FY 2006 (Oct. 1, 2005 - Sept. 30, 2006) has been reached.  The DHS/USCIS announced that FY 2007 (Oct. 1, 2006 - Sept. 30, 2007) can be submitted on April 1, 2006 (however, H-1B employment cannot begin until Oct. 1, 2006).
Important: H-1B applications that arenot subject to the numerical limitation are not affected by the "visa cap" problem (see below).
 

Updates:  June 1, 2006 -- H-1B Visa Cap Reached After publishing on May 25, 2006 that there were approximately 10,000 H-1B visa numbers remaining for FY2007, on June 1, 2006, the USCIS has announced that as of May 26, 2006, the H-1B visa numbers for FY2007 has been reached*.  The "final receipt date" for H-1B applications subject to the FY 2007 annual cap (October 1, 2006 - September 30, 2007) is May 26, 2006.  Affected H-1B applications received on that date will be subject to the random selection process. `PDF4Download: FY 2007 H-1B Visa Cap Reached Memo (DHS/USCIS) (06/06).... i8Gov. Site: Official FY 2007 H-1B Visa Number Site (DHS/USCIS) (June 2006) Note: U.S. Masters and higher degree holders can still apply for FY2007. 20,000 H-1B visas are available for foreign nationals with Masters and higher degrees from U.S. graduate schools.  As of June 2006, there are approximately 14,000 remaining. Note: Cap-exempt H-1B visa applications can be applied at any time. H-1B applications that are not subject to the numerical limitation are not affected by the "visa cap" problem.  Therefore, cap-exempt H-1B employment start date can be on/before/after October 1, 2006.

Important: H-1B applications that are not subject to the numerical limitation are not affected by the "visa cap" problem and can be filed anytime.  Applications that are not subject to the numerical limitation:

a)(1)  H-1B extension application for the same H-1B employer/petitioner,

a)(2)  H-1B application by an H-1B visa holder to work concurrently for a new employer/peititioner, unless current H-1B employer is (c), (d), or (e) below AND the new H-1B employer is not (c), (d) or (e) below,

b)  H-1B change of H-1B employer/petitioner application (including extension at the same time), unless, the current/prior H-1B employer is/was (c), (d), or (e) below AND the new H-1B employer is not (c), (d) or (e) below.

c)*  The H-1B petitioner/employer is an institution of higher education as defined in the Higher Education Act of 1965, section 101(a), 20 U.S.C. section 1001(a).

d)*  The H-1B petitioner/employer is a nonprofit organization or entity related to or affiliated with an institution of higher education, as such institutions of higher education are defined in the Higher Education Act of 1965, section 101(a), 20 U.S.C. section 1001(a).

e)*  The H-1B petitioner/employer is a nonprofit research organization or a governmental research organization, as defined in 8 CFR 214.2(h)(19)(iii)(C).

f)  The H-1B beneficiary/employee of the application is a J-1 nonimmigrant alien (graduate medical education or training pursuant to IAN 212(e)(iii)) who received a waiver of the 2-year foreign residency requirement described in section 214(l)(1)(B) of the Act (commonly referred to as the Conrad State 20 program).

g)  The H-1B beneficiary/employee has been previously granted status as an H-1B nonimmigrant in the past 6 years and not left the United States for more than a year after attaining such status,

h)  20,000 (limited to) foreign nationals with Masters and higher degrees from U.S. graduate schools.

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`PDF4Download: H-1B Visa Reform Bill US CIS Press Release (DHS/US CIS) (05/2005)
`PDF4Download: H-1B Visa Reform Bill / Federal Register (DHS/US CIS) (05/2005)
*`PDF4Download: Exemption Definitions ("affiliate" "at" "related" "non-profit" "research") (May 2004)

H-1B EMPLOYER'S OBLIGATIONS AFTER APPROVAL:

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CHANGES IN EMPLOYMENT RELATIONSHIP - AMENDING THE PETITION

The H-1B Employer must file an amended H-1B petition with the US CIS when there is a "material" change in the terms and conditions of employment or the H-1B employee's eligibility.  Minor changes should be informed to the US CIS when filing an extension of stay.  Additionally, material changes in the H-1B Labor Condition Application (ETA-9035) requires a new certification from the Department of Labor.  Because the H-1B Labor Condition Application is part of the H-1B application, it is recommended that an amended H-1B application be filed when a new certification for the H-1B Labor Condition Application is obtained (however, such an amended application may not be necessary according to the US CIS).

The US CIS has stated that amended H-1B applications be filed in the following circumstances:

1.  A "material" change in the terms and conditions of the H-1B employment, including:  change in job duties, locations* or terms and conditions of employment, including contract length.

The US CIS has stated that amended H-1B applications may not be necessary in the following circumstances:

1.  When the employer changes its name,
2.  When there is a change in the ownership structure (mergers, acquisitions, or consolidations) if the new company assumes all obligations, liabilities, etc., because:  "It is understood that the new owner(s) of the firm assumes the previous owner's liabilities which  would include the assertions the prior owner made on the labor condition application."  (The new company needs to maintain records a list of the transferred H-1B employees, and makes a sworn statement that it assumes all obligations, liabilities, and undertakings arising from or under attestations made in each certified and still effective H-1B Labor Condition Application (20 CFR 655.730(e).)
*3. The US CIS states that a change in location does not require an amended H-1B application because it is not a material change, and as long as the H-1B employer obtains a new, certified H-1B Labor Condition Application (ETA-9035).  Notwithstanding, one reason why a change in location is considered a material change is because the "prevailing wage rate" for the H-1B position may change based on a work site location (the Metropolitan Statistical Area (MSA) of the work site is one factor that determines the "prevailing wage rate" of a particular position).  The remuneration for an H-1B professional/specialist position must be higher of the "prevailing wage" or the "actual wage."  Therefore, if a work site location change results in a different MSA, and the wage rate based on the new MSA is higher than the wage offered and stated on the approved H-1B application, then the location change would result in an approved H-1B visa that is not based on an accurate higher of the "prevailing" or "actual" wage requirement.
`PDF4Download: H-1B "Location Change" Amendment Not Always Necessary (10/03) (DHS/US CIS)*
`PDF4Download: H-1B Amendment Not Necessary (06/01) (DHS/US CIS)

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RETURN TRANSPORTATION INFORMATION

 As part of the Immigration Act of 1990, Congress revised the H-1B nonimmigrant visa category.  Among other things, Congress added a provision requiring all H-1B employers to certify that they will pay the reasonable costs of return transportation abroad for any H-1B alien they hire if the alien is fired before the end of his/her authorized stay.  (This is reflected in the '"attestation" requirement of the H-1B Labor Condition Application (ETA-9035).)  The rules of the US CIS governing this requirement lack an enforcement provision, and they do not indicate to whom the cost of transportation must be paid.  Traditionally, the US CIS has indicated little interest in enforcing this provision.

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TERMINATION/REVOCATION OF VISA INFORMATION

Pursuant to 8 CFR § 214.2(p)(10), revocation of the H-1B visa will occur automatically if petitioner or employer goes out of business, or a written withdrawal is filed with the US CIS.  The H-1B employer is required to notify the US CIS in regard to termination and/or revocation of an H-1B employee.

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PROCESSING TIME:

Processing time, after submission to the US CIS (INS) is several months, with longer delays in the mid/west regions (Note:  I-129 H-1B applications are filed with regional US CIS Service Centers).  The US CIS accepts "premium processing" -- by paying an additional $1,000.00, the US CIS "guarantees" a fifteen-day turnaround.

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STEPS:

In general, three steps:

1)  File the Labor Condition Application (LCA) with the Dept. of Labor (DOL), after certification,
2)  File the H-1B Application with the US CIS (INS).

If the beneficiary/employee is in valid "status" when the H-1B application is filed, then the application is considered as being "timely filed."  In this case, staying in the U.S. during processing time is considered "lawful" (but does not extend "status," for purposes for filing another/different application).  Work authorization is not automatically granted during this period.  However, if the beneficiary/employee has separate valid work authorization, he/she can continue to work pursuant to the conditions and validity period.
Note:  If the beneficiary/employee has filed "timely" and has a prior H-1B visa, he/she may be able to work immediately upon filing the application (without waiting for the approval notice).

3)  If the US CIS (INS) has questions, it will send a RFE (Request for Further Evidence).  In this case, additional delays in processing.  If not, below:

4)  Approval notice:

(a)  If the beneficiary/employee "changed" or "extended/amended" status, then he/she probably will not have to leave the United States to obtain the actual H-1B visa "sticker" inside his/her passport (reason:  H-1B "status" has been approved in the U.S.; the visa "sticker" is an entry-document [when entering the United States].
(b)  If the beneficiary/employee is overseas, he/she will probably have to visit the U.S. Consulate/Embassy and obtain the H-1B visa "sticker" prior to entering the U.S. to commence employment.
(c)  If the beneficiary/employee's status change/extension is not approved (because of "overstay" "violation of status" etc.) then he/she can still be approved for the H-1B visa -- but must first visit the U.S. Consulate/Embassy and obtain the H-1B visa "sticker" prior to entering the U.S. to commence employment.

5)  Before entering the United States, apply for the H-1B visa "sticker" at the U.S. Consulate/Embassy (Note: see above; it is not always necessary to have the H-1B visa "sticker" to be in H-1B status).
 

Updates:  April 9, 2004 Regulations prohibit the entry of an H-1B beneficiary more than 10 days prior to the start of his/her authorized employment. Therefore, the U.S. Dept. of State typically prohibits the issuance of H-1B visa "stickers" more than 10 days prior to the application/petition validity date.  For example, approval notices with an H-1B start date of October 1, 200X, will be issued an H-1B visa "sticker" on September 20, 200X.  However, to minimize the workload at the U.S. Consulates/Embassies during the month of September, over the past two years, many U.S. Consulates/Embassies will accept applications and issue H-1B visa "stickers" prior to the standard 10 day rule. Such visas will be be annotated "not valid until (ten days prior to petition validity date)."  `PDF4Download: FY 2005 H-1B Visa "Sticker" Issuance Pre-Sept. 20, 2004 (April/04) (DOS)

The filing of the H-1B Labor Condition Application (LCA) ETA-9035 with the Department of Labor (DOL) is necessary prior to submitting the H-1B petition to the US CIS (INS).  The H-1B LCA is an attestation by the employer, including:  that the "professional/specialist" will be paid the higher of two specific wage levels:  the "prevailing wage"* that is normally determined by the local State Employment Security Agency (SESA/SWA), and the "actual wage" which is determined by comparison to all other similar "professionals/specialists" at the employer's place of business.

Updates:  November 22, 2004 With respect to the prevailing wage:  100% or higher (currently 95%), but for governmental wage surveys, four wage levels will be used instead of the current two wage levels (wage levels will be based on experience, education and the level of supervision).

*The SESA/SWA's prevailing wage may not be entirely correct (other sources may be possible to use).

This process is different from the Labor CERTIFICATION Application (LCA) that is commonly required for those seeking permanent legal residence status through employment.  The H-1B Labor CONDITION Application does not require a showing that there are no qualified U.S. workers who can take the job; there is NO need to place advertisements for recruiting such individuals.
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LABOR CONDITION APPLICATION (LCA) ATTESTATIONS:

1.  The H-1B specialty worker will be paid the higher of two specific wage levels: the "prevailing wage", which is determined by the local State Employment Security Agency (SESA/SWA), and the "actual wage", which is determined by comparison to all other workers situated similarly to the specialty worker at the employer.  There is no need to prove that there are qualified U.S. workers who can take the job; there is no need to place advertisements for recruiting such individuals.
2.  Posting the LCA in two conspicuous places where the services are to be performed so that other U.S. workers may know that you intend to file an H-1B petition on behalf of a specialty worker.  Penalties, including back pay, are provided in the event you make a misrepresentation of fact on an LCA.
3.  Also, an employer must state that he/she will pay for the specialty worker's "return transportation abroad" in the event the specialty worker is terminated before the expiration of his or her visa status.  The rules of the US CIS (INS) governing this requirement lack an enforcement provision, and they do not indicate to whom the cost of transportation must be paid.  Although US CIS (INS) has indicated little interest in enforcing this provision, it is part of the law.
4.  Also, an employer must keep the LCA and prevailing wage/actual wage documentation on file.

Additional Attestations Required:

5.  Some new attestations are required, and even more attestations are required for H-1B employers/petitioner who:

a)  have been found (after October 21, 1998) to have committed certain labor condition application (LCA) violations, or
b)  who are "H-1B dependent employer" because H-1B workers make up at least fifteen percent* (15 %) of the total workforce (not including H-1B workers who receive a salary of at least $60,000.00 or have attained a master's degree or higher in the relevant field).

*If less than 25 full-time employees and more than seven H-1B employees;
If 26-50 full-time employees and more than twelve H-1B employees;
If 51+ full-time employees and 15% or more H-1B employees

The additional attestations, in this case, will be:

6.  The H-1B employer/petitioner has not "displaced" a U.S. worker during the period commencing 90 days before the filing of an H-1B petition (not the filing of the LCA) and ending 90 days after the filing of the petition (job contracts may be liable to punishment for violation of the lay-off attestation when the lay-off has occurred at another employer where the job contractor has placed H-1B workers).
7.  The H-1B employer/petitioner has taken "good faith steps" to recruit U.S. workers for the job for which H-1B nonimmigrants are sought ( the recruitment must meet industry-wide standards and must offer compensation that is at least as great as that required to be offered to H-1B nonimmigrants).
8.  The H-1B employer/petitioner has offered the job to any U.S. worker who applies and is equally or better qualified for the job than the H-1B nonimmigrants who we seek to hire.

Material changes in the H-1B Labor Condition Application requires a new certification from the Department of Labor.  Specifically, a change in location of the worksite may result in a different "prevailing wage rate" because the Metropolitan Statistical Area (MSA) of the worksite may be different ("prevailing wage rate" is determined based on several factors, including the MSA).  Other requirements such as the positing notice, etc., must also be undertaken.
Because the H-1B Labor Condition Application is part of the H-1B application, it is recommended that an amended H-1B application be filed when a new certification for the H-1B Labor Condition Application is obtained.  However, such an amended application may not be necessary according to the US CIS (see section "H-1B EMPLOYER'S OBLIGATIONS AFTER APPROVAL").
 

Updates:  November 29, 2004 A new version of the form ETA-9035, H-1B Labor Condition Application (LCA), will be required as of November 30, 2004 for both H-1B and H-1B1 filings. The new form incorporates the distinction between H-1B and H-1B1 Singapore/Chile programs.  i8H-1B-1 "Professional Worker" Category Visa  (Nationals of CHILE and SINGAPORE)

 
The I-129 Nonimmigrant Visa Worker form used for the H-1B application, has a filing fee of:  $190.00 (October 26, 2005).
The H-1B ACWIA fee, required from the H-1B employer, is $1,500.00 or $750.00 for employers with less than 25 full-time employees (see below for exceptions).
The H-1B "fraud and prevention detection" fee, required from the H-1B employer, is $500.00 (see below for exceptions).
Premium processing -- for fifteen-day turnaround service by the US CIS (INS) -- is $1,000.00.
 

Updates:  December 8, 2004 (1) For all H-1B applications, reinstatement and increase of the ACWIA fee which will be $1,500.00 per application (for employers with less than 25 full-time employees, $750.00).  (Note:  Previously exempt employers will continue to be exempt from the fee.) Note:  This provision becomes effective on December 8, 2004.  (2) For initial and change of employer H-1B applications a new "fraud detection and prevention" fee of $500.00.  (Extensions for the same employer will be exempt, and this fee is required from the principal applicant only (not for spouses/children accompanying or following to join).  Note:  This provision becomes effective on March 8, 2004.

H-1B ACWIA Fee:

The H-1B ACWIA fee $1,500.00 or $750.00 (employers with less than 25 full-time employees) is not required, if the following:

Institution of higher education, or

A nonprofit organization or entity related to or affiliated with an institution of higher education, as such institutions of higher  education, or

A nonprofit research organization or a governmental research organization, or

Primary or secondary education institution, or

A non-profit entity that engages in an established curriculum-related clinical training of students registered at such an institution, or

The H-1B application is a second or subsequent request for an extension of stay for the intended employee*, or

An amended petition that does not contain any extension requests, or

Petition to correct an US CIS (BCIS/INS) Service error.

* The US CIS (BCIS/INS) has issued clarification in regard to "second/subsequent" request for an extension of stay, in the following example:

Example:
1)  Employer A files an H-1B petition ($1,500.00/$750.00 ACWIA required).
2)  Employer A files an H-1B extension ($1,5000.00/$750.00 ACWIA required).
3)  Employer A is now Employer B (merger).
4)  Employer B (formerly Employer A) files an H-1B extension ($1,500.00/$750.00 ACWIA NOT required).

Example:
1) Employer A files an H-1B petition ($1,500.00/$750.00 ACWIA required).
2)  Employer B files an H-1B petition and extension ($1,500.00/$750.00 ACWIA required).
3)  Employer B files an H-1B extension ($1,500.00/$750.00 ACWIA required).

`PDF4Download: H-1B Visa Reform Bill (DHS/US CIS) (Dec. 8.2004)
`PDF4Download: (blank document) DSI041703
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H-1B ACWIA Fee:

The H-1B "fraud and prevention detection" fee of $500.00 is not required, if the following:

• Extensions for the same employer.
• Fee is required from the principal applicant only (not for spouses/children accompanying or following to join).

`PDF4Download: H-1B Visa Reform Bill (DHS/US CIS) (Dec. 8.2004)

H-1B visas are generally valid for a total of six (6) years (generally, in three-year increments).
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GENERAL:

1.   If there is a break of one (1) year where the H-1B employee has spent this time outside of the United States, then the "clock" is set-back, and the period is once again six (6) years.  The break will depend on establishing "residence abroad."  The regulations do not specify a "continuous" period, however.

2.  "Recapturing unused H-1B period," by demonstrating that the H-1B employee, during the validity period, has spent time outside the United States.  Such time must be considered as "meaningfully interruptive."  [Note: This also applies to L visa employees.].  Meaningfully Interruptive means, maternity leave, extended medical leave, long term details outside the United States.  Vacations and sick days are NOT meaningfully interruptive.

UPDATE:  H-1B Additional Periods (Keep Your Airline Tickets) H-1B visas are generally valid for a total of six (6) years (generally, applied in three-year increments).  There are several ways to extend this 6-year limitation, and one is "recapturing" unused H-1B visa periods.  Recapturing is possible when an H-1B employee/beneficiary can demonstrate that he/she, during the H-1B visa validity period,  spent time outside the United States.  In the past, such time had to be considered as "meaningfully interruptive" (maternity leave, extended medical leave, long term details outside the United States).  Vacations and sick days were NOT considered meaningfully interruptive. Note: New Rule Any days (24 hour period) spent outside of the United States during the validity period of an H-1B (or L-1 petition) will not be counted toward the maximum period of stay in the United States in H-1B or L-1 status, provided that the beneficiary/employee is able to submit independent documentary evidence establishing that he or she was in fact physically outside of the United States during the day(s) for which the alien is seeking recapture (INA § 101(a)(15)(H)(i)(b) and INA § 101(a)(15)(L).).  Evidence can include copies of I-94 Arrival/Departure cards (small white card inside the passport, issued upon entry into the United States by the USCBP that indicate date of entry), entry notations by a foreign country in the passport (entry notations by the U.S. when entering the U.S.), and airline tickets.  000 `PDF4Download: H-1B "H-1B Recapture" Clarification Memo (10/05) (US CIS)

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AC21 104(c) "ONE-TIME" H-1B EXTENSION:

Extensions beyond the normal six (6) year are available to H-1B holders with approved I-140 immigrant preference visa applications, who suffer from "per country limits"* and cannot file I-485 "adjustment of status" applications or process for Consular Processing abroad.  Such H-1B visa holders may file to extend H-1B status in 3-year increments until an immigrant visa becomes available.  The US CIS has clarified that while this provision is known as the "one-time" extension, H-1B holders in this situation can extend as necessary (as many times as needed), and different from AC 106(a) [see below] that allows extension in only 1-year increments.
`PDF4Download: AC21 104(c) H-1B "One-Time" Extension Clarification Memo (05/05) (US CIS)
`PDF4Download: AC21 US CIS Guidance Memorandum (06/01)  &  Pearson Memo (01/01) (US CIS)

Updates: * PERCOUNTRY LIMITS UPDATE:  July 1, 2005 The July 2005 Visa Bulletin shows a retrogression to "Unavailable" for employment-based third preference for all nationalities, as well as retrogression in the family-based preferences for Mexico.  Beginning July 1, 2005 and until immigrant visas become available for employment-based third preference categories, affected applicants will not be able to file Form I-485 or concurrently file Form I-140 and Form I-485 unless an immigrant visa number becomes available.  The third preference category for employment-based applications are for Skilled Workers, Professionals, and Other Workers and is 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to Other Workers.  Family-sponsored and employment-based preference visas are issued to eligible immigrants in the order in which a petition in behalf of each has been filed (spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal).  The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.  Only applicants who have a priority date earlier than the cut-off date may be allotted a number.  Applicants who file for I-485 adjustment of status in the employment-based third preference before July 1, 2005 (other than those from mainland China, India and the Philippines) will have a priority date earlier than the cut-off date and will be allotted a number. `PDF4Download: Retrogression/Third Preference Category (Visa Bulletin/DOS) (7/2005) UPDATE:  December 29, 2005 As a result of the immigrant visa regression, beginning on January 1, 2005, and until further notice, affected applicants from mainland China, India, and the Philippines will not be able to file Form I-485 or concurrently file Form I-140 and Form I-485 unless an immigrant visa number is available, pursuant to the Visa Bulletin.  There is an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000.  Family-sponsored and employment-based preference visas are issued to eligible immigrants in the order in which a petition in behalf of each has been filed (spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal).  The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit.  These provisions apply at present to the following oversubscribed chargeability areas: mainland China, India, and the Philippines. `PDF4Download: Concurrent Filing Memo (Regression/Country Specific) (US CIS/DHS) (12/2004)

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AC21 106(a) "FILED LCA" H-1B EXTENSION:

The US CIS (INS) has issued memos in regard to the AC21 106(a) H-1B 1-year extension rule.

1-year extensions of H-1B visas are allowed if:

i)  The H-1B holder is in valid H-1B status when filing*  the 1-year** (7th+ year) extension application, and
ii)  The H-1B holder is in the U.S., in H-1B status on/after November 2, 2002 (this is not clarified, yet)

and (a), (b), (c), (d):

(a)  H-1B holder is the beneficiary of an ETA-750 Labor Certification Application (LCA) filed on his/her behalf, that has been pending for more than 365 days**, or
(b)  H-1B holder is the beneficiary of any I-140 immigrant visa preference application filed on his/her behalf, that has been pending for more than 365 days**, or
(c)  H-1B holder has filed his/her own I-140 immigrant preference application, that has been pending for more than 365 days**.
(d)  H-1B holder is the substituted*** beneficiary of any**** ETA-750 Labor Certification Application (LCA) that has been filed and pending for more than 365 days.

*Note:  "Early" Extension Application.  A beneficiary is eligible for as long as either the qualifying labor certification application or I-140 petition has or will have been pending for at least 365 days prior to the beneficiary's requested start date, regardless of whether the H-1B extension application is filed prior to the passage of such period.  (Note:  If the beneficiary would no longer be in H-1B status at the time that 365 days from the filing of the labor certification application or immigrant petition has run, thus leaving a gap in valid status, then the extension of stay request cannot be granted.)
`PDF4Download: AC21 106(a) H-1B 7th Yr. Extension Clarification Memo (05/05) (US CIS)

** Note:  "Combined" Extension Application.  The beneficiary should be in valid H-1B status when filing for the extension that is normally made in 1-year increments.  However, a "combined" submission that will include a normal H-1B extension request and the 1-year extension can be made at the same time (request for any remaining time left in the initial 6-year period and the 1-year extension).
`PDF4Download: AC21 106(a) H-1B 7th Yr. Extension Clarification Memo (05/05) (US CIS)

***Note:  "Substitution." LCAs are filed for a beneficiary, but the petitioner/employer can use a filed LCA for a different beneficiary (substitution).
`PDF4Download: AC21 106(a) H-1B 7th Yr. Extension Clarification Memo (05/05) (US CIS)

****Note:
The NSC (Nebraska Service Center) has agreed that an extension of status is possible in the following situation:  A foreign national who has obtained 7th year of H-1B status based on pending LCA #1.  LCA#1 is denied.  However, LCA#2 is available for beneficiary -- that has been pending for more than 365 days by the expiration date of the 7th year H-1B.  In this case, beneficiary is eligible for 8th year of H-1B extension.
`PDF4Download: H-1B AC21 106(a) LCA#1 & LCA#2 Exists (06/04) (NSC US CIS)

1-year H-1Bs will be issued until:

i)  LCA is denied**, or
ii)  LCA approved but the I-140 is denied**, or
iii)  I-140 is denied**, or
iv)  I-485 adjustment is denied**.

**Note: Denials can be appealed.  If appealed, the denial can be reversed and is therefore not considered a final decision, and 1-year H-1B extensions will continue to be approved.

H-4 spouses will also be able to obtain 7th year H-4 extensions, based on the H-1B principle's 7th year extension.

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`PDF4Download: AC21 106(a) H-1B 7th Yr. Extension Clarification Memo (05/05) (US CIS)
`PDF4Download: AC21 106(a) H-1B 7th Yr. Extension Clarification Memo (04/03) (US CIS)
`PDF4Download: AC21 106(a) DOS Cable (06/01) (DOS)
`PDF4Download: AC21 US CIS Guidance Memorandum (06/01)  &  Pearson Memo (01/01) (US CIS)

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STANDARD H-1B FILING & TRAVELING OVERSEAS AFTER FILING:

If an H-1B "change of status" or "extension of status" is filed, the beneficiary/employee should not travel overseas.  The reason is that this type of application requests not only the H-1B visa approval, but a status change from one type of visa (i.e., F-1) to the H-1B -- in the United States.  By departing during processing, the beneficiary/employee's status change can no longer proceed (Aug 2002 US CIS (INS) clarification*).  If the beneficiary/employee does leave the U.S. while the application is pending, he/she will typically have to wait until the H-1B is approved (without the status change part being approved), and then, visit the U.S. Consulate/Embassy to obtain the H-1B visa "sticker."

*The US CIS (INS) has re-stated its position that if an individual files to change from one type of visa to another in the United States, he/she should not travel overseas.  A departure will be considered as "abandoning" the change of status request (some individuals may be able to travel overseas under certain circumstances).  If an individual does leave the U.S., but still wishes to re-enter the U.S. with the requested type of visa, he/she will most likely have to wait outside the U.S. until the application for the visa (not the change of status) is approved, and obtain the visa from the U.S. Consulate/Embassy.  (Note: Successfully approved change-of-status applications normally do not require the individual to depart the U.S. and obtain the visa).

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AC21 105 H-1B VISA "PORTABILITY" (New H-1B Employer/Petitioner Filing):

A nonimmigrant previously issued an H-1B visa "sticker" or provided H-1B nonimmigrant visa "status" may begin working for a new H-1B employer "as soon as" the new employer files a nonfrivolous H-1B application on the nonimmigrant's behalf, if:

(a) the nonimmigrant was lawfully admitted to the U.S. (and is currently in the U.S.), and
(b) the nonfrivolous application for new employment was filed before the end of the nonimmigrant's period of "authorized stay ((a) I-94 Validity, (b) "authorized stay" after filing)" and
(c) the nonimmigrant has not been employed without authorization:

(1) since his/her lawful admission to the United States, and
(2) before the filing of the nonfrivolous application.

..
"as soon as"...

In short, this allows a H-1B visa/status holder to work for a new H-1B petitioner/employer "as soon as" a "nonfrivolous" H-1B application is received by the US CIS (INS).  The VT US CIS states that there is no need to wait for an I-797 H-1B Receipt Notice, and that an H-1B employee can begin working on a date -- as long as the AC21 H-1B visa "portability" application is received on that date (or before the first work day) and if the H-1B LCA start date is also on/before the first work day (Feb/March 2003 US CIS clarification) at the new place of employment.

Note:  Additionally, the INS Adjudications Liaison Minutes (03/01) [Posted on AILA InfoNet at Doc. No. 01061932 (June 19, 2001)], raises the following issue/question:  If the application for the new employer should result in an denial of the extension/change of employer visa "status" (only approved for the visa "sticker" issuance), the period of employment, upon receipt of the application by the US CIS, should allow the employee/beneficially to be considered as being "lawfully present."
 

Note:  May 2004 The use of E-filing may be advantageous in the following situations:  (1) converting standard-filed applications to I-907 premium processing because a conversion application would only require the submission of the I-907 application form and accompanying payment of $1,000.00, (2) when using AC21 H-1B Portability, where the new I-129 must be "received" by the US CIS before H-1B employment can begin (E-Filing will allow the petitioner/beneficiary to obtain a filing receipt immediately after E-filing), (3) for timely filing applications that require submission of substantial evidence and documents (E-filing provides seven (7) business days to submit documents after E-filing applications).  i8Details: E-Filing (Nonimmigrant Visa Section)

"authorized stay ((a) I-94 validity)"...

4Filing (a) during I-94 validity

Under 105 of AC21, the H-1B beneficiary/employee needs to file an AC21 H-1B employer "port" application while he/she has a valid H-1B visa "status" (during the validity of the H-1B I-94 period).  However, there are questions as to whether or not a beneficiary/employee can "port" to a new H-1B employer if he/she has valid H-1B I-94 but is no longer working (a violation of status).  While further clarification is required, it appears that there is no prohibition of filing an application to "port" to a new H-1B employer, even if the H-1B beneficiary/employee has not been maintaining H-1B status, as long as the requirements of 105 AC21 (including, no unauthorized employment) is met.

Note:  Prior to issuance of the June 2001 US CIS AC21 H-1B Guidance Memo, these concerns were raised in the INS Adjudications Liaison Minutes (03/01) [Posted on AILA InfoNet at Doc. No. 01061932 (June 19, 2001)].  Specifically, in regard to when an applicant's "authorized stay" expires (before filing an AC21 H-1B visa portability application), the following: AILA:  "Accordingly, Service interpretations of "unlawful presence" enunciated in the General Counsel Memorandum of September 19, 1997, recently reaffirmed in HQ 70/12-P and HQADN 70.21.1.24-P (Exec. Assoc. Comm'r Field Operations, March 3, 2000), must also apply to Section 105...The "period of stay authorized by the Attorney General" may be reflected in an unexpired I-94, or through evidence that an extension or change of status application was filed prior to expiration of the I-94. The beneficiary does not need to be employed at the time of filing of a new, nonfrivolous H-1B petition, so long as he or she has not engaged in unlawful employment since the most recent entry to the U.S....Inclusion in the AC21 statutory language of these specific elements of maintenance of status, as well as the use of the "period of stay authorized by the Attorney General" language, provides a clear indication of Congressional intent that other elements of maintenance of status, such as continued employment with the original H-1B employer, are not relevant to the authorization of employment provided by Section 105..." and AILA:  "...Section 105(a) adds a new subsection (m) to INA section 214 to allow a nonimmigrant who meets the three criteria discussed in item 13 above to accept new employment upon the filing of a new petition, provided the nonimmigrant “was issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b)” (emphasis added). By the terms of this section, it is not necessary that the nonimmigrant currently be holding H-1B status, only that s/he had been issued an H-1B visa or otherwise provided H-1B status previously. Thus, persons who once held H-1B status, but subsequently changed to, for example, B-2 or F-1 status when they ceased their earlier H-1B employment, can begin their new H-1B employment under section 105 once the petition is filed..." and INS’ Written Response:  "The benefits of Section 105 portability are still under discussion within the Agency.  Therefore, we are not comfortable addressing these issues at this time." and Further Discussion at Meeting:  "Both sides agree that it is clear that Congress was trying to meet the needs of U.S. employers with AC21. The portability provisions were somewhat shocking to INS when first proposed and included new concepts. INS acknowledges that the process must result in speed in moving from one employer to another. Issues causing the greatest internal agency debate and which are holding up the issuance of the INS regulations focus on what Congress intended with regard to maintenance of status and what is meant by “status authorized by the Attorney General.” Mr. Yates indicated that some at INS are troubled by interpretations that would allow a person who once had H-1B status for a brief period, but who had been out of status for three years, to be eligible to move to a new employer using the portability provision of AC21.  While the language of the statute is very broad, some at INS think that Congress intended to say that the person must be in lawful status when the new H-1B petition was filed in order to port. Mr. Yates noted that current INS regulations give the agency the discretion to consider an alien to be in lawful status even though they have been laid off prior to the filing of the H-1B petition. Mr. Yates said that the ability to port to a new employer could depend on status but that the agency will try to reach a reasonable interpretation. An individual who is terminated but for whom a subsequent petition is filed in a short time frame will probably be allowed to port, according to Mr. Yates." `PDF4Download: AC21 US CIS Guidance Memorandum (06/01)  &  Pearson Memo (01/01) (US CIS) `PDF4Download: H-1B AC21 Visa "Portability" (Maintenance of Status) SI 01061932 `PDF4Download: H-1B AC21 "Portability" & Visa "Cap" Relationship (May 2004)

"authorized stay ((b) "authorized stay" after filing)"...

4Filing (b) during "authorized stay" after filing

Additionally, to file for a change or extension of nonimmigrant status, the beneficiary must normally be in valid "status" and not simply "authorized stay."  The visa "status" is the validity of the I-94 Arrival/Departure card, and if an application is filed timely during a valid visa "status," the beneficiary of the application is granted "authorized stay."  Authorized stay is different from status, and while the beneficiary can remain in the United States (and also work in some instances, such as under AC21 105 H-1B "Portability,") the beneficiary cannot use the period of "authorized" stay to create a "bridge" to file additional applications while remaining in the United States.  However, according to a recent US CIS (INS) memorandum, specific to AC21 H-1B 105 "Portability," multiple H-1B applications can be filed as long as the beneficiary has "authorized stay."

UPDATE:  July 2, 2005: Interoffice Memorandum, HQPRD 70/6.2.8-P, Date: May 12, 2005, Re: Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313): AILA/Question 1:  Can an H-1B temporary worker “port” under §105 of AC21 (INA § 214(n)) from one employer to another even after the alien's I-94 or last approved petition has expired as long as he or she is still in a “period of stay authorized by the Attorney General”? USCIS/Answer: Yes. Under certain circumstances, an H-1B alien may still be able to port to another H-1B employer even after the alien's I-94 or last approved petition has expired. In order to port, however, such alien must meet all the requirements of INA § 214(n), including the requirement that the new petition be filed while the alien is in a “period of stay authorized by the Attorney General.” USCIS has previously determined and issued guidance explaining what constitutes a “period of stay authorized by the Attorney General.”  One example would be: Alien is in H-1B status. Employer A timely files a non-frivolous extension of the alien's H-1B status. Alien's original petition, approved for Employer A, expires during the tendency of the extension. Alien is then in a “period of stay as authorized by the Attorney General” while Employer A's extension is pending. Employer B then files new petition and alien wants to port to Employer B. Under INA § 214(n), the alien should be permitted to port because he or she is in a “period of stay as authorized by the Attorney General.” In other words, porting under INA §214 does not require that the alien currently be in H-1B status as long as he or she is in a “period of stay authorized by the Attorney General.” AILA/Question 2:  Can there be successive H-1B portability petitions filed for an alien while the previous H-1B petitions remain pending (i.e. creating a “bridge” of H-1B petitions)? US CIS/Answer:  Yes. However, to be approved every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay. AILA/Question 3:  If successive H-1B portability petitions can be filed, what happens if an alien's nonimmigrant status expires while the H-1B portability petitions are pending and a petition in the “bridge” is denied? US CIS/Answer:  As stated above, to be approved every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay. In the event the alien's nonimmigrant status has expired while the petitions are pending, the denial of any filing in the string of extension of stay and/or change of status filings undercuts the “bridge” that “carried” any petition filed after the expiration of any approved status which will result in the denial of the successive requests to extend or change status. `PDF4Download: AC21 Interoffice Memorandum [US CIS] [05/05]

H-4 spouses will also be able to maintain H-4 status based on the H-1B principle's portability benefits.
[Posted on AILA InfoNet at Doc. No. 01061932 (June 19, 2001)].

`PDF4Download: AC21 US CIS Guidance Memorandum (06/01)  &  Pearson Memo (01/01) (US CIS)
`PDF4Download: H-1B AC21 Visa "Portability" (Maintenance of Status) SI 01061932
`PDF4Download: H-1B AC21 "Portability" & Visa "Cap" Relationship (May 2004)

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AC21 H-1B "PORTABILITY" FILING & TRAVELING OVERSEAS AFTER FILING:

For beneficiaries/employees who already hold the H-1B visa, this rule is slightly different.  AC21 made several changes to the H-1B visa, including AC21 105 visa "portability."  In short, this allows a H-1B visa/status holder to work for a new H-1B petitioner/employer as soon as a "nonfrivolous" H-1B application is received by the US CIS (INS).  The VT US CIS states that the employee can work on a start date, if the application is received on that date (or before) and if the H-1B LCA start date is on/before the start date (Feb/March 2003 US CIS clarification).  Additionally, if the following applies, the H-1B visa holder can travel overseas, during processing, if:

1.  The H-1B AC21 beneficiary/employee is otherwise admissible, and
2.  The H-1B AC21 beneficiary/employee, unless exempt under 8 CFR 212.1, is in possession of a valid, unexpired passport and H-1B visa (including a valid, unexpired visa endorsed with the name of the original petitioner), and
3.  The H-1B AC21 beneficiary/employee establishes to the satisfaction of the inspecting officer that he or she was previously admitted as an H-1B or the otherwise accorded H-1B status.

Documents required:

1.  Previously issued Form I-94 Arrival/Departure Record or a copy of the previously issued I-94, and Form I-797, Notice of Action Approval Letter from the US CIS (INS), with the original petition's validity dates.
2.  Original H-1B AC21 application's US CIS (INS) I-797 Notice of Action Receipt (or other credible evidence of timely filing that is validated through a CLAIMS query).  In order to be a timely filing, the H-1B AC21 must have been filed prior to the expiration of the previous H-1B Form I-94 Arrival/Departure Record expiation date.

Also, it appears that the U.S. Department of State will issue a new H-1B visa "sticker" with the new H-1B employer's information, if an individual applies for and requests it.  However, the validity period of this new H-1B visa "sticker," for the new H-1B employer (that is still pending), will only be for the duration of the originally approved H-1B visa.  (Note: This has not been clarified sufficiently by the US CIS (INS) or U.S. Dept. of State.)

`PDF4Download: AC21 US CIS Guidance Memorandum (06/01)  &  Pearson Memo (01/01) (US CIS)

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NEW H-1B EMPLOYER BUT OLD, VALID H-1B VISA IN PASSPORT:

If an H-1B employee has a new, valid H-1B visa "status" document, such as I-797A US CIS (INS) Notice of Action Approval Letter from the US CIS (INS), and a previously issued H-1B visa "sticker" (with former H-1B employer/petitioner's name), the "old" H-1B visa "sticker" can be used to re-enter the United States.  The "old' H-1B visa "sticker" must be valid and the original I-797A US CIS (INS) Notice of Action Approval Letter should be presented (additionally, a copy of the application).  However, applying for a new H-1B visa "sticker" with the new H-1B employer/petitioner is possible.  The U.S. Dept. of State, however, in the past, have refused to issue a new H-1B visa "sticker" -- as long as the old one is still valid (based on the above rule).  (Note: This has not been clarified sufficiently by the US CIS (INS) or U.S. Dept. of State.

On September 3, 2003, President Bush signed into law the United States-Chile Free Trade Agreement Implementation Act (Pub. L. No. 108-77) and the United States-Singapore Free Trade Agreement Implementation Act (Pub. L. No. 108-78). Under the immigration provisions of the Acts, a new H-1B1 nonimmigrant category was created that provides 1,400 visas annually for Chileans and 5,400 visas annually for Singaporeans.

These provisions become effective on January 1, 2004.
...
There are a number of important differences between the Chile and Singapore Free Trade Agreements and the existing H-1B nonimmigrant specialty occupation worker category.

1. There is no petition requirement with the CIS on behalf of a Chilean or Singaporean desiring free trade nonimmigrant (H-1B1) status.

Individuals who are not in the United States who wish to be admitted initially in H-1B1 nonimmigrant classification must apply directly to the Department of State for an H-1B1 nonimmigrant visa. Such persons must submit a job offer letter, relevant credentials, and a H-1B1 labor attestation (in the form specified by the Department of Labor), and any other relevant documentation required by the State Department. The NSC role in adjudicating H-1B1 cases is limited to requests for either a change of nonimmigrant status to that of H-1B1 or a request for an extension of stay in that classification.

As of January 1, 2004, employers submitting a Labor Condition Application (LCA) for foreign workers from Chile or Singapore under the H-1B1 program must file an ETA Form 9035 by mail with the national office of the Department of Laborís Division of Foreign Labor Certifications.  The LCA will be processed and returned by mail within the statutory 7-day period.  Applications are to be forwarded via mail to:

U.S. Department of Labor
200 Constitution Avenue, NW
Room C-4318
Washington, DC 20210
Attention: H-1B1 Processing

Employers must write on the top of the first page of the ETA 9035 "H-1B1 Chile" or "H-1B1 Singapore" to have this application processed under the H-1B1 provisions of the Immigration and Nationality Act.

Updates:  November 29, 2004 A new version of the form ETA-9035, H-1B Labor Condition Application (LCA), will be required as of November 30, 2004 for both H-1B and H-1B1 filings. The new form incorporates the distinction between H-1B and H-1B1 Singapore/Chile programs.  (Note:  As of November 30, 2004, H-1B1 applications for Singapore and Chile will no longer be accepted at the Washington, DC, address previously included in H-1B1 program instructions.)

i8Gov. Site: H-1B "Specialty (Professional) Workers" (US DOL, E&TA)

...
2. Unlike the H-1B category, which generally requires possession of a relevant professional license as a condition to admission, the H-1B1 category does not require such licensure as a prerequisite to admission as an H-1B1 nonimmigrant*.

Professionals admitted in H-1B1 classification will, however, be expected to comply with all applicable State and Federal licensure requirements for engaging in their respective profession following their admission to the United States.

...
3. Unlike H-1B specialty occupation workers, who may be admitted for up to three years initially, with extensions available normally up to six years, professionals from Chile and Singapore may be admitted initially for a maximum of one-year, and they may extend their H-1B1 stay an indefinite number of times, in one-year increments, as long as they continue to demonstrate that they do not intend to remain or work in the United States permanently.

Note that, unlike the H-1B statute, which specifically allows for “dual intent,” there is no similar provision with respect to an H-1B1 nonimmigrant.

.......
"PROFESSIONAL"

The new H-1B1 category is available to “professionals” from Chile and Singapore. For purposes of the two trade agreements, a “professional” is defined as “a national of [Chile or Singapore] who is engaged in a specialty occupation requiring:

(a) theoretical and practical application of a body of specialized knowledge; and
(b) attainment of a post-secondary degree in the specialty requiring four or more years of study (or the equivalent of such a degree) as a minimum for entry into the occupation.” See Chapter 16, Annex 16.4, Section IV, paragraph 2, of the U.S.-Chile Free Trade Agreement and Chapter 11, Annex 11A. Section IV, paragraph 2, of the U.S.-Singapore Free Trade Agreement.

.......
*NO DEGREE REQUIRED

In addition, the H-1B1 nonimmigrant classification is available to certain otherwise admissible business persons who do not possess a post-secondary degree or its equivalent, but who will engage in the professions of:

(1) in the case of Chilean nationals only, Agricultural Managers and Physical Therapists, and
(2) in the case of nationals of both Chile and Singapore, Disaster Relief Claims Adjusters. Further, in the case of nationals of both countries, certain Management Consultants who hold a degree in other than their specialty area will be able to seek admission in H-1B1 classification by presenting alternative documentation reflecting experience in the specialty area.

`PDF4Download: H-1B1 for Nationals of Chile & Singapore (03/04 [01/04])) (USCIS/INS)

Download Acrobat PDF Information & Questionnaire

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