ILW.COM - the immigration portal Immigration Daily

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers

Home Page

Advanced search


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

Chinese Immig. Daily

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily

 

Chinese Immig. Daily



The leading
immigration law
publisher - over
50000 pages of free
information!

Copyright
©1995-
ILW.COM,
American
Immigration LLC.

Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here:



< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly


R 110024Z MAR 04
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
AMEMBASSY KABUL
AMEMBASSY KHARTOUM
AMEMBASSY DUSHANBE
AMEMBASSY BUJUMBURA
AMEMBASSY PORT AU PRINCE 
UNCLAS STATE 053902


VISAS

E.O. 12958: N/A
TAGS: CVIS
SUBJECT: H-1B1 TEMPORARY ENTRY OF NONIMMIGRANT
PROFESSIONALS

REF: A) P.L. 108-77 AND P.L. 108-78 OF SEPTEMBER 3, 2003
B) STATE


1. Summary: The United States has entered into free trade
agreements (FTAs) with Singapore and Chile which took
effect on January 1, 2004. Both FTAs contain provisions
that will allow the temporary entry of businesspersons into
the territory of the trading partners to facilitate
meaningful trade. In addition to providing temporary entry
for aliens who qualify under existing business visa
categories and their dependents (visitors for business (B-
1), traders and investors (E-1/E-2), and intra-company
transferees (L-1), both FTAs create a new category of
nonimmigrant professional, H-1B1. H-1B1 nonimmigrant
professionals from Chile and Singapore will be subject to
the requirements contained in the Temporary Entry
Provisions of the FTAs. Specifics of these requirements are
set forth in the revised FAM notes provided in this cable.
End summary.

2.Requirements for H-1B1: Effective January 1, 2004,
nationals of Chile or Singapore may apply at consular
sections around the world for a nonimmigrant professional
H-1B1 visa. To qualify, professions must meet the
definition of "specialty occupation" set forth in the
respective FTA or submit proof of alternative credentials
as set forth in the respective FTA. The applicant must
also submit a job offer letter from the employer, proof of
labor attestation (certified ETA 9035 or 9035E), proof of
payment of any special fee, if applicable and pay the MRV
fee. [Currently no special fee is required]. [Note: Aliens
already in the United States as nonimmigrants may apply to
DHS for a change of nonimmigrant status to H-1B1 pursuant
to INA 248. Such an alien who departs the United States
would need an H-1B1 visa to seek readmission as an H-1B1.]

3. Numerical limitations: The FTAs allow for no more than
1,400 professionals from Chile and 5,400 professionals from
Singapore to enter the United States annually. The
numerical limitations for the FTAs are set aside within the
overall H-1B Program cap.

4. No petition required: The employer of an H-1B1
professional is not required to submit a petition to the
Department of Homeland Security as a prerequisite for
classification or visa issuance. The applicant is required
to submit evidence of eligibility for H-1B1 classification
directly to the consular officer at the time of visa
application.

5. As in the H-1B program, employers of H-1B1 professionals
must file a Labor Attestation, using ETA Form 9035 or ETA
Form 9035E, Labor Condition Application (LCA), clearly
annotated by the employer as "H-1B1 Chile" or "H-1B1
Singapore," with the Department of Labor (DOL). DOL is
required to certify to the Department that the LCA has been
filed with DOL. Once certified by DOL, the LCA is sent to
the employer. A copy of the Labor Condition Application,
signed by both DOL and the employer, will be given to the
employee with the job offer letter. [NOTE: The validity of
the visa should not exceed the validity period of the LCA
at the time of application. Most LCA's will have a minimum
period of validity of 18 months. The overall validity
period of the LCA is still under discussion among the
agencies. But nonetheless, the visa validity period is
limited to that of the underlying of the LCA.]

6. Temporary entry: Both FTAs provide for the temporary
entry of nonimmigrant professionals, which is defined as
"..an entry into the United States without the intent to
establish permanent residence." The Department's
regulation pertaining to NAFTA [22 CFR 41.59(C)] expands
this definition and should be referred to for guidance in
connection with the H-1B1 professional.

7. The following notes will be incorporated into 9 FAM at
41.53:

9 FAM 41.53 N27 Free Trade Agreement Nonimmigrant
Professionals

9 FAM 41.53 N27 Background.
A. The President signed free trade agreements (FTAs) with
Chile and Singapore on September 3, 2003. The FTAs with
Chile and Singapore were authorized by Congress in P.L.
108-77 and P.L. 108-78 respectively. Both agreements
became effective on January 1, 2004.
B. The FTAs with Chile and Singapore include immigration
provisions that allow for the temporary entry of business
persons into the territory of the trading partners in order
to facilitate free trade opportunities. The temporary
entry of nonimmigrant business persons is provided for in
Chapter 14 of the U.S.-Chile Agreement and in Chapter 11 of
the U.S.-Singapore Agreement. The temporary entry chapters
in both agreements establish four categories of
nonimmigrant entry for business purposes. Three of the
categories, business visitors, traders/investors, and
intra-company transferees, qualify for visas under the
existing B-1, E-1/E-2 and L-1 visa categories. The FTAs
establish a new fourth category of temporary entry for
nonimmigrant professionals, the H-1B1 category. Dependent
spouses and children accompanying or following to join are
also eligible for temporary entry.

9 FAM 41.53 N28 H-1B1 Requirements

9 FAM 41.53 N28.1 H-1B1 applications subject to numerical
limitations

A. Annual numerical limits are set for aliens who may
obtain H-1B1 visas. 1,400 professionals from Chile and
5,400 professionals from Singapore are allowed to enter the
U.S. annually. These numerical limits fall within and will
be registered against the existing annual numerical limit
(currently 65,000) for H-1B aliens. Only principals are
counted against each country's respective numerical
limitation. Initial applications for H-1B1 classification,
as well as the sixth and all subsequent extensions of stay,
are counted against the H-1B1 annual numerical limitations.
B. At the end of each fiscal year, unused H-1B1 numbers
will be returned to that year's global numerical limit and
will be made available to H-1B aliens during the first 45
days of the new fiscal year.
C. DHS is required to maintain the numerical limits for the
H-1B1 category. To assist DHS in meeting this
responsibility, consular officers will be required to
report to the Directorate for Visa Services at designated
intervals the number of visas issued to first-time H-1B1
visa applicants. (Reporting procedures are currently being
developed. Guidance will be provided once procedures have
been established.)

9 FAM 41.53 N28.2 No petition required

An employer of an H-1B1 professional is not required to
file a petition with DHS. Instead, an employee will
present evidence for classification directly to the
consular officer at the time of visa application.

9 FAM 41.53 N28.3 Applicants subject to Labor Condition
Attestation.
A..Employers must submit a Labor Attestation for foreign
workers from Chile or Singapore under the H-1B1 program.
The law requires the Department of Labor (DOL) to certify
to the Department of State that the appropriate Labor
Condition Application (LCA), ETA Form 9035 or ETA Form
9035E, has been filed with DOL. If certified, the employer
transmits a copy of the signed, certified LCA to the alien
together with a written offer of employment. At the time
of visa application, the alien will present a certified
copy of the LCA, clearly annotated by the employer as "H-
1B1 Chile" or "H-1B1 Singapore," as proof of filing.
B. As discussed fully above, the validity of the visa
should not exceed the validity period of the LCA.

9 FAM 41.53 N28.4 H-1B1 Professionals in specialty
occupations

A. The new H-1B1 category allows for the entry of
nonimmigrant professionals in "specialty occupations." The
statutory definition of "specialty occupation" is found at
8 U.S.C. 1184(i)(1)(A) and (B)]provides that "...an
occupation that requires- (A) theoretical and practical
application of a body of specialized knowledge; and (B)
attainment of a bachelor's or higher degree in the specific
specialty (or its equivalent) as a minimum for entry into
the occupation in the United States." The regulatory
definition incorporates the statute verbatim and can be
found at 8 CFR 214.2. Consular officials should refer to
this section for guidance in connection with an applicant's
qualifications as an H-1B1 professional. However, while the
statutory and regulatory definition of the term "specialty
occupation" is the same for H-1B and H-1B1, the statute and
regulations governing the beneficiary qualifications differ
from H-1B to H-1B1 with respect to licensure as discussed
below in this cable.
B. Both agreements allow for alternative credentials for
certain professions. The U.S. has agreed to accept
alternative credentials for Chilean and Singaporean
nationals in the occupations of Disaster Relief Claims
Adjuster and Management Consultant with a combination of
specialized training and 3 years experience in lieu of the
standard degree requirements. For Chilean nationals only,
Agricultural Managers and Physical Therapists can also
qualify with a combination of a post-secondary certificate
in the specialty and 3 years experience in lieu of the
standard degree requirements. Consular officers may accept
specified documentary evidence of alternative credentials.

9 FAM 41.53 N28.5 Temporary Entry

A. Both agreements provide for the temporary entry of
professionals into the U.S. Temporary entry is defined in
both agreements as "an entry into the United States without
the intent to establish permanent residence." The alien
must satisfy the consular officer that the proposed stay is
temporary. A temporary period has a reasonable, finite end
that does not equate to permanent residence. The
circumstances surrounding an application should reasonably
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. An intent to immigrate in the future, which is
in no way connected to the proposed immediate trip, need
not in itself result in a finding that the immediate trip
is not temporary. An extended stay, even in terms of
years, may be temporary, as long as there is no immediate
intent to immigrate.
B. H-1B1 nonimmigrant professionals are admitted for a one-
year period renewable indefinitely, provided the alien is
able to demonstrate that he/she does not intend to remain
or work permanently in the U.S.

9 FAM 41.53 N28.6 Licensing Requirements

For admission into the United States in a specialty
occupation, an alien must meet the academic and
occupational requirements. While the requirements for
classification as an H-1B include licensure, requirements
for classification as an H-1B1 nonimmigrant professional do
not include licensure. Licensure to practice a given
profession in the United States is a post-entry requirement
subject to enforcement by the appropriate state or other
sub-federal authority. Proof of licensure to practice in a
given profession in the United States may be offered along
with a job offer letter, or other documentation in support
of an application for an H-1B1 visa. However,
admission/classification should not be denied based solely
on the fact that the applicant does not already hold a
license to practice in the United States. [Note: Aliens
seeking classification as H-1B1 are subject to INA
212(a)(5)(C)Uncertified Foreign Health Care Workers. DHS
is expected to publish regulations that will go into effect
for nonimmigrant healthcare workers in July 2004.]

9 FAM 41.53 N28.7 Fees

A Special fee may be imposed for initial classification or
certain extensions of stay as an H-1B1 worker, if such a
fee is required for the global H-1B program. Currently
there is no special fee required of the petitioner or
employer of an H-1B or H-1B1 worker.

9 FAM 41.53 N28.8 H-1B1 Visa Application Procedures

A. A national of Chile or Singapore must meet the general
academic and occupational requirements for the position
pursuant to the definition cited. Proof of alternative
credentials must be submitted for certain professions as
discussed in 9 FAM N27.5 B.
B An applicant must submit evidence that his or her
employer has filed an LCA with DOL covering the applicant's
position. A certified ETA 9035 or 9035E, clearly annotated
as "H-1B1 Chile" or "H-1B1 Singapore" must be submitted as
evidence of filing.
C.An applicant must submit evidence that the employer has
paid any applicable fee imposed.
D.An applicant must submit evidence that his or her stay in
the United States will be temporary (a letter or contract
of employment should evidence that the employment is being
offered on a temporary basis).
E.An applicant must pay the Machine Readable Fee or provide
proof of payment.
F.Aliens who were admitted to the United States as
nonimmigrants may apply to DHS for a change of nonimmigrant
status to H-1B1 pursuant to INA 248. Such an alien who
departs the United States would need an H-1B1 visa to seek
readmission as an H-1B1.

8. Case specific inquiries may be referred to the
respective VO/L/A officer assigned to cover the regional
portfolio for the post in question.



Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here: