As the H1B season is coming up, I wanted to cover another category of this visa based on the Free Trade agreements with Singapore and Chile.
Although Chilean and Singaporan nationals still have available to them the B and L visa categories, the new H-1B1 category is available to “professionals” from these countries under the new FTAs. 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.”
In addition, the H-1B1 nonimmigrant classification is available to certain otherwise admissible businesspersons 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 both Chilean and Singaporan nationals–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.
Several provisions place limitations on the flexibility of the H-1B1 classification under the FTA: (1) H-1B1 specialty occupation visas under the FTA are only valid for one-year increments; (2) there is no dual-intent provision; and (3) the employer must comply with the labor condition attestation requirements under the traditional H-1B provisions, including non-displacement of U.S. workers and prevailing wage requirements.
A provision of the FTAs allows applicants to apply directly for H-1B1 visas at the U.S. embassy or consulate without first obtaining approval from the Department of Homeland Security (DHS).
According to the most recent DHS statistical report, Chilean and Singaporan nationals are not the majority users of H-1B visas. The major consumers of the H-1B category come from India, China, Canada, and the Philippines. 9
Perhaps the H-1B1 provision in these FTAs exists to promote the perception of lowered barriers to Chilean and Singaporan nationals who wish to travel to the United States, essentially allowing the United States to gain greater leverage in trade negotiations without greatly altering longstanding visa categories. Recent history has confirmed that the H-1B1 category was scarcely used by Chilean and Singaporean nationals
The H-1B1 category under the FTA does not limit the qualifications for the visa to only those who will further U.S. trade or commerce. Unlike NAFTA–where Trade NAFTA (TN) visas were limited to a list of professionals acceptable for entry into the United States (8 CFR §214.6(c), Appendix 1063.D.1)–the Chile and Singapore FTAs set no such limitations on the H-1B1 visa category. In fact, the agreements specify only that the positions meet the requirements of a “specialty occupation” to qualify for H-1B1 classification.