R 110024Z MAR 04
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
AMEMBASSY PORT AU PRINCE
UNCLAS STATE 053902
E.O. 12958: N/A
SUBJECT: H-1B1 TEMPORARY ENTRY OF NONIMMIGRANT
REF: A) P.L. 108-77 AND P.L. 108-78 OF SEPTEMBER 3, 2003
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
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.