H-1B1 classification is type of temporary visa which provides employment authorization to citizens of Singapore and in certain “specialty occupations.” The H-1B1 visa category was created as a result of Free Trade Agreements between the United States and these countries. In the H-1B1 process, the employer is called the”H-1B1 Petitioner” and the employee is called the “H-1B1 Beneficiary.”
The H-1B1 Beneficiary may work only for a specific employer (H-1B1 Petitioner) under the terms of employment stated in the H-1B1 application package. The H-1B1 beneficiary may start working upon approval of change of status or upon admission into the with an H-1B1 visa. H-1B1 dependents (spouse and unmarried children under 21) are given H-4 status. A person holding H-4 status is not eligible to work. 6,800 H-1B1 visas are available each year for citizens of Singapore and Chile. Since the visa category was created in 2004, this quota has never been reached.
It is extremely important that the H-1B1 Petitioner and H-1B1 Beneficiary understand that H-1B1 employment is temporary, and that this visa requires nonimmigrant intent. This means that an H-1B1 visa can be denied if a US government officer believes that the H-1B1 Beneficiary may not return to his or her home country or will apply for US permanent resident status. The H-1B1 Beneficiary must give truthful answers to all questions. The US government officer must understand that the Beneficiary has an un-abandoned residence in the home country, and that he or she intends to remain in the U.S. only as long as legally permitted, (up to 18 months), unless the employer and employee decide to apply for an additional period of H-1B1 status.
H-1B1 Petitioner Requirements. The job offered must be in a “specialty occupation.” This means that a specialized bachelor’s degree (or higher) or its equivalent is the minimum requirement for the job by the employer’s internal standard and industry standard. The H-1B1 Petitioner must have a bona fide need for the H-1B1 Beneficiary’s services and provide prevailing wages and working conditions.
H-1B1 Beneficiary Requirements. The H-1B1 Beneficiary must be qualified to work in the specialty occupation, by possessing the required degree in the specialty area, or a foreign degree that is equivalent to a US bachelor’s degree in the specialty area. Citizens of Singapore and Chile may apply for the regular H-1B visa, if for example, the H-1B1 Beneficiary does not have a bachelor degree conferred by a college or university but has the equivalent education and experience). Information on the H-1B visa is available at this link.
The H 1B1 process involves two steps. In the first step, the H-1B1 Petitioner obtains an approved Labor Condition Application (LCA) from the US Department of Labor. In the second step the H-1B1 Beneficiary obtains an H-1B1 visa stamp in the passport from an American Consulate or Embassy.
1. Labor Condition Application. The Labor Condition Application (LCA) is filed with the Department of Labor (DOL). The LCA (Form ETA-9035) is the employer’s attestation regarding compliance with the following conditions:
- Wages & Benefits. H-1B1 workers will receive the higher of either the average wage that the employer pays other employees in the same position, or the industry average wage (called the prevailing wage). H-1B1 workers will receive employee benefits on the same basis as US workers
- Working Conditions. Employment of H-1B1 workers may not adversely affect the working conditions of other workers
- No Strike or Lockout. There is no strike, lockout or work stoppage in the H-1B1 occupation at the place of employment.
- Notice to Workers. Notice of the LCA has been provided to other company employees in the same occupation. A copy of the LCA will be provided to the H-1B1 employee.
2. The H-1B1 Visa Stamp. After the LCA has been approved by the Department of Labor (DOL), the H-1B1 Beneficiary must go to an American Embassy or Consulate for an interview to obtain the H-1B1 visa stamp. The visa stamp in the passport is required for entry into the in H-1B1 status. Dependent family members follow the same process to receive H-4 visas for use in entering the . The H-1B1/H-4 visa stamping process normally is completed within 1 to 5 days after the visa interview.
Change of Status to H-1B1 & Extension of H-1B1 Status
A person present in the in a valid temporary immigration status may file to change status to H-1B1 with the Citizenship and Immigration Service (USCIS). The renewal of the H-1B1 may be processed in two ways: (1) the H-1B1 Beneficiary may go to an American Embassy or Consulate for an interview to obtain a new H-1B1 visa stamp, or (2), the H-1B1 Petitioner may file for an extension of H-1B1 status by mail with the Citizenship and Immigration Service. The normal processing time for H-1B1 renewal at a USCIS office is 2-3 months. For an additional fee of $1000, the USCIS can process the H-1B1 renewal within 10 days. Please note even if the USCIS has approved an H-1B1 change of status or extension, the H-1B1 Beneficiary must possess an H-1B1 visa stamp in the passport in order to reenter the . An H-1B1 visa stamp may be obtained only through an interview at an American Consulate of Embassy outside the
Because government processing times vary and a case may have special circumstances, the H-1B1 Beneficiary should not make any final plans such as starting or terminating employment or school, traveling to or from the US, purchasing nonrefundable tickets, selling or buying property, signing or terminating a lease, shipping or storing personal goods, etc., until H-1B1 status is granted or the H-1B1 Beneficiary has otherwise received written advice to take such action from the Law Office.
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