H1B Professionals, H1B1 Chilean & Singaporean Nationals & E-3 Australian Nationals
H1-B Specialty Occupation
The H1B category is designated for foreign national employees coming to the United States to perform services in a specialty occupation (temporary professional workers) or as a fashion model. A “specialty occupation” means an occupation that requires:
- A theoretical and practical application of a body of highly specialized knowledge, and
- Attainment of at least a Bachelor’s degree (or equivalent) in the specialty.
While these requirements appear to be quite simple, the Trump Administration has rendered the H-1B into one of the more complex visa categories requiring extensive experience to navigate its pitfalls. H-1Bs is in fact our largest practice area allowing us to give you very practical and proactive advice relating to the portability, classification, educational background, wage, and travel issues. The below is a general overview of the H-1B.
The H1B category has a 6-year maximum period of stay but is unique from other visa categories in that employers may request post-6th year H1B extensions for employees if certain stages of the permanent residency process are in place for the employee. Periods of time spent in L status count towards the H1B 6-year limit. The United States Citizenship & Immigration Service (USCIS) grants H1B status in increments of up to 3 years at a time. The H1B nonimmigrant visa is a dual intent visa. As such, H1B employees are allowed to pursue permanent residency in the United States while they hold nonimmigrant H1B status. H1B status requires a sponsoring U.S. employer. Once an employer indicates they wish to pursue sponsorship of an H1B petition on behalf of a candidate, the employer should notify Younossi Law so that relevant fact gathering information may be sent both to the employer and the H1B candidate.
Aside from the documentary requirements involved in the USCIS petition filing itself, H1B employers must be aware of a number of compliance issues that fall under the jurisdiction of both the Department of Labor and the USCIS. These include issues relating when, at the earliest, or latest an employee can be placed on payroll, as well as how to place an employee on payroll when no Social Security Number has been issued.
H1B1 Category for Chilean & Singaporean Nationals
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 H1B1 nonimmigrant category was created that provides 1,400 visas annually for Chileans and 5,400 visas annually for Singaporeans. The annual 6,800 H1B1 numerical cap will be counted against the H1B numerical cap. These provisions become effective on January 1, 2004.
The new H1B1 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. Unlike the H1B category, which generally requires possession of a relevant professional license as a condition to admission, the H1B1 category does not require such licensure as a prerequisite to admission as an H1B1 nonimmigrant. Professionals admitted in H1B1 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.
Congress has established a yearly cap of 6800 new H1B1 workers. The regular H1B cap is limited to 65,000 available H1B numbers. Of these 65,000 available H1B numbers, 1,400 H1B1 visas are allotted annually for Chileans and 5,400 H1B1 visas are allotted annually for Singaporeans.
The H1B1 nonimmigrant visa is a strictly nonimmigrant intent visa. As such, H1B1 employees may NOT have immigrant intent while they hold H1B1 status in the United States which impacts the ability to pursue permanent residency while in H1B1 status. Consequently, consulate or USCIS officers reviewing an applicant’s H1B1 eligibility may also review the “temporariness” of the H1B1 position and period of H1B1 stay by making sure the H1B1 assignment in the U.S. will end at a “predictable time” and that the H1B1 employee will depart the U.S. upon the completion of the assignment.
Please contact Younossi Law regarding any questions relating to H-1B, H-1B1, E-3s and any LCA compliance issues.
E-3 visas for Australian Professionals
Established by the READ ID Act of 2005, the E3 visa category was created for Australian professionals entering the United States to perform services in a specialty occupation. While the E3 visa category has similar characteristics to the H1B visa category, there are significant differences between the two classifications. The E3 visa category is similar to the H1B visa category in that the category subject to an annual numerical limitation of 10,500; the E3 visa category requires the employer to obtain a certified Labor Condition Application (LCA) and requires that the E3 national be employed in a specialty occupation in the United States with a United States sponsoring employer. However, the methods for securing an E3 visa and the nonimmigrant intent issues for the E3 vary from the H1B visa category. In addition, spouses of E3 visa holders may apply for and receive employment authorization. Premium processing is also not available for the E3 visa category.
Please contact Younossi Law should you be interested in exploring this visa category further.