The H-1B1 visa is similar to the H-1B visa: it is a nonimmigrant visa that allows an alien to perform skilled labor temporarily for an employer in the United States. However, there are several differences, of which the most important are summarized below:
- H-1B1 status is only available to citizens of Chile and Singapore.
- H-1B1 quotas have never been reached.
- Petitions are not required in order to obtain an H-1B1 visa.
- H-1B1 status is granted in 1-year increments, whereas H-1B status is granted in 3-year increments.
- There is no explicit 6-year limit on the number of times H-1B1 status can be extended.
- H-1B1 workers cannot avail themselves of INA 214(n) portability.
- H-1B1 status does not explicitly allow dual intent.
References for the above claims are provided with the more detailed answers further down this page.
H-1B1 status is only available to nationals of Chile and Singapore, pursuant to free trade agreements that those countries have signed with the United States [1][2][3]. Like H-1B status, H-1B1 status is only available to an alien in a specialty occupation who is being sponsored by an employer that has filed a labor condition application with the Department of Labor [1]. The definition of "specialty occupation" for H-1B1 status [4] is very slightly different from the definition for H-1B status.
As is the case with H-1B status, the "specialty occupation" criterion for H-1B1 status is subjective and it is not possible for a layman to understand the nuances of the interpretation of the statute, but an employer that frequently sponsors employees for H-1B visas for a particular role will almost certainly be able to sponsor H-1B1 visas as well, provided that their lawyers are familiar with the H-1B1 classification. As is the case with H-1B status, H-1B1 status is generally available to software engineers (for the time being) despite the fact that many software engineers do not have a bachelor's degree in computer science or a related speciality.
I don't know whether increased scrutiny on H-1B applications has also affected H-1B1 applications. If you have information about this, feel free to contribute.
For those who qualify—only Chileans and Singaporeans—the H-1B1 visa is often the most convenient choice because of the fact that its annual quota has never been reached; while there is a lottery for H-1B visas every year, there is no H-1B1 lottery. Like the H-1B visa, the H-1B1 visa can be preferable to the L-1 visa because it doesn't require working for an employer outside the US for 1 year, and to the O-1 visa because it is much easier to qualify for.
Due to the terms of the free trade agreements, a petition is not required in order to obtain an H-1B1 visa [5]. However, note that the treaties did not grant exemptions from the requirement to obtain a visa to enter the US. Thus, an alien outside the US, whose employer has filed a labor certification application with the Department of Labor, would apply for an H-1B1 visa at a consular post, submitting documents directly to the consular post rather than to USCIS [6].
An alien already in the United States wishing to change status to H-1B1, however, must have Form I-129 filed on their behalf by their sponsoring employer [7]. The adjudication of Form I-129 is a two-step process, in which USCIS first determines whether the petition is approvable, then determines whether the beneficiary qualifies for the change of status sought [8]. Usually, both steps will be approved, in which case USCIS sends Form I-797A, containing an I-94 indicating the new H-1B status and authorized period of stay [9]. However, it's possible that the petition is approved while the change of status is denied—typically because USCIS has determined that the beneficiary has violated their status, making them ineligible for a change of status—and the beneficiary must usually leave the United States and apply for a visa.
It should be noted that H-1B1 petitions are not eligible for premium processing [12], so leaving the US to apply for an H-1B1 visa will probably be a faster method of obtaining H-1B1 status than changing status to H-1B1 within the US (which requires the petition).
Unlike H-1B status, H-1B1 status may only be granted for 1 year at a time, and can be extended in 1-year increments [10]. Extensions of H-1B1 status are done using Form I-129 [7]. However, there is no statutory or regulatory limit on the number of extensions that can be granted. Therefore, H-1B1 workers who have already worked in the US for 6 years in H-1B1 status can continue to extend their status.
However, H-1B1 status does not allow dual intent, so aliens who work in the US in H-1B1 status for many years could eventually be denied further extensions on the grounds that they seem to be an intending immigrant. For this reason, H-1B1 workers often switch to H-1B status and apply for a green card, or, in some cases, start the green card process while still in H-1B1 status. (We'll discuss the issue of dual intent further below.)
What happens if my employer applies to extend my stay, but my I-94 expires while the petition is pending?
The general rules about I-94 expiration with a pending extension apply to this scenario. Provided that the extension was timely filed and the alien did not engage in any unauthorized employment, the alien will be protected from accrual of unlawful presence as long as the extension remains pending; if it is denied after the previous I-94 expired, then unlawful presence will only begin to accrue after the extension petition is denied.
In this scenario, for a 240 day period after the previous petition expires, the alien is authorized to continue employment with the same employer (such employment is not considered unauthorized
). Again, while the extension is pending, employment authorization continues only for up to 240 days after the expiration of the petition (unless the extension petition is denied) [15] Thus, as long as USCIS continues to adjudicate petitions within 240 days, there should generally be no reason for your H-1B1 employment to be interrupted, as long as the employer always files for an extension before your I-94 expires. However, in rare cases where the 240 day clock runs out, you can still stay in the US, but you can't work. This is because of the general rule about extensions mentioned in the previous paragraph.
If a denial occurs during the 240 day period, then employment authorization immediately ceases since the petition is no longer pending [15].
An H-1B1 worker who does not have an EAD is only permitted to work for their sponsoring employer [11]. It is permitted to work for multiple employers concurrently, but only as long as each employer wishing to employ the H-1B1 alien has met the applicable requirements. In other words, an H-1B1 alien in the United States who wants to begin new concurrent employment must wait until the new employer has had Form I-129 approved (and the new employer must have filed a labor condition application); while the Foreign Affairs Manual is not clear on this, it appears that an alien outside the United States, who already has an H-1B1 visa authorizing employment with one employer, who wishes to work for both that employer and a new employer concurrently upon their return to the US, must apply for a new H-1B1 visa, presenting required evidence concerning the new employment to a consular post, and explaining that they intend to work for both employers. See for example here.
According to the U.S. embassy in Chile, H-1B1 workers cannot be self-employed or independent contractors. See the answer to the similar question about H-1B status. Although the regulations are not crystal clear, it seems reasonable to assume that the nuances of the H-1B employer-employee relationship requirement also apply to H-1B1 status. However, note again that if you have an EAD, you can work for any employer, including being self-employed.
The answer to this question is the same as for H-1B workers.
The H-4 EAD program only applies to certain spouses of H-1B nonimmigrants [21]. As discussed above, the H-1B1 status is a distinct status from H-1B, and is not a subtype thereof. Therefore, an H-4 spouse of an H-1B1 nonimmigrant is not eligible for the H-4 EAD program. The H-4 spouse of an H-1B1 nonimmigrant might, however, qualify for the compelling circumstances EAD
.
Since, as discussed above, H-1B1 nonimmigrants are generally authorized only to work for a sponsoring employer, if an H-1B worker wants to change jobs, the new company must be one that is willing to sponsor H-1B1s. If you want to switch employers while in the US, the new employer must file a petition on Form I-129. If you intend to leave the US and then return to work for the new employer, while the Foreign Affairs Manual does not specifically cover this situation, some online resources (e.g., here and here) indicate that it is necessary to apply for a new H-1B1 visa for the new employer, and the original H-1B1 visa will be cancelled if you no longer intend to work for the old employer.
One important difference between H-1B and H-1B1 status is that an H-1B1 worker may not start working at the new employer while the new petition is pending. They must wait for the petition to be approved. This is because the text of INA 214(n) [13] specifically refers to the paragraph of the Immigration and Nationality Act that defines H-1B status, whereas H-1B1 status is defined in the following paragraph. The fact that H-1B1 workers do not benefit from INA 214(n) portability is also noted in the federal regulations [14]. Unfortunately, immigration lawyers providing answers on the internet often seem to believe, mistakenly, that INA 214(n) portability applies to H-1B1 workers. Thus, the options are to have the new employer file an H-1B1 petition and wait for it to be approved before switching to the new employer, or to leave the US and apply for a new H-1B1 visa.
Since premium processing is not available for H-1B1 petitions [12], leaving the US and applying for a new H-1B1 visa for the new employer is likely to be faster than switching employers while in the US. (However, the new employer's filing of the petition does not terminate your work authorization at your old employer, so going the I-129 route does not require being temporarily unemployed; you can hand in your resignation after the new petition is approved.)
If you really want to file with USCIS to change employers, then you can stay in the US while the new petition is pending, thanks to the general rules about I-94 expiration with a pending extension, but again, you're not allowed to work for the new employer during that period. You can resign from your current employer, and just sit around waiting for the new petition to be approved. Because H-1B1 status is only granted in 1-year increments, by the time the petition gets approved, a substantial fraction of the 1-year period requested by the new employer will have passed already, so the new employer will also have to file an extension petition soon (they can avail themselves of the 240-day rule; see above). Despite this inconvenience, this option can be useful for H-1B1 workers who cannot travel for some reason.
H-1B1 workers may be able to qualify for a green card through the same paths as H-1B workers: that is, most often through an employment-based category, and most often through the same employer that is sponsoring their H-1B1 visa, but this has some risks that it is important to be aware of. This is due to two important differences between H-1B and H-1B1 status:
- H-1B1 status does not permit dual intent [18], even though H-1B status does. If you are an intending immigrant, you may no longer be admitted on an H-1B1 visa or be granted any further 1-year extensions of H-1B1 status. Once you have filed for adjustment of status, you have revealed your intent as an intending immigrant.
- H-1B1 status is only granted in 1-year increments, so it is quite likely for your I-94 to expire before your adjustment of status can be approved, and as explained in the previous item, further extensions are not possible.
Some H-1B1 workers will accept these risks (explained in more detail in the green card FAQ), while others will take the safer route of entering the H-1B lottery and only applying for a green card once H-1B status has been secured. (Entering the H-1B lottery does not affect your ability to continue to qualify for H-1B1 status.)
Since H-1B1 status does not permit dual intent, how can I avoid being considered an intending immigrant?
The determination of whether an alien seeking an H-1B1 visa or H-1B1 status is made based on the subjective judgement of consular officials, CBP agents, and USCIS officers each time a visa, admission, or extension or change of status is sought. Thus, it's usually not possible to be absolutely certain that you will or will not be regarded as an intending immigrant. However, some important considerations are listed below:
- Filing Form I-485 is the most unambiguous evidence of immigrant intent. However, having an employer file a labor certification application for you (the first step in the EB-2 and EB-3 green card process, other than National Interest Waiver cases) does not affect your ability to seek H-1B1 status since it is filed with the Department of Labor, rather than USCIS or the State Department.
- Unlike applicants for B, F, or J status, an H-1B1 applicant is not explicitly required to demonstrate that they have a residence abroad that they have no intention of abandoning [1]. Therefore, the approval of the H-1B1 petition, together with the absence of factors that would arouse a suspicion of immigrant intent, is generally sufficient to satisfy INA 214(b).
- The Foreign Affairs Manual recognizes [19] that "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." Therefore:
- Multiple extensions and renewals are possible, but not if you appear to be using H-1B1 status to live in the US permanently in order to avoid the need to go through the green card process. It is of course quite common for people to work in the US for many years while still maintaining an intent to eventually go back to their home country. But there may come a point when, based on the subjective judgement of the officials concerned, you appear to be trying to live in the US permanently. Therefore, if you do want to live in the US permanently, you should usually start the green card process early on in order to minimize this risk.
- The fact that your employer is likely to eventually sponsor you for a green card does not imply that the immediate trip should be denied based on immigrant intent. However, if a CBP agent asks you whether you're going to apply for a green card and you say something stupid like "yeah, my employer is probably going to start the process in a few months" then you are likely to be denied entry since it now appears that you are going to immigrate on the immediate trip.
Yes, an H-1B1 worker may be eligible for a grace period of up to 60 days. This is discussed in the general FAQ. H-1B1 is specifically listed as one of the classifications eligible for the grace period according to the regulations.
During the grace period, one may transfer to another employer, change status, adjust status, or depart the US. Note however that as discussed above, there is no AC21 portability available for H-1B1 workers. Therefore, if you do choose to have a new employer file for an H-1B1 transfer within the US, you will have to remain unemployed for several months while you wait for it to be approved.
The proclamation [16] (which expired at the end of March 31, 2021 and is thus no longer in effect) covered H-1B, H-2B, J-1, and L-1 visas. The H-1B1 visa is distinct from the H-1B visa: the above questions and answers give some examples of ways in which statutory provisions that apply to H-1B visas do not apply to H-1B1 visas unless explicitly specified. That is, the H-1B1 visa is not a subtype of the H-1B visa and therefore, as written, the proclamation did not affect the issuance of H-1B1 visas.
The US embassy in Singapore initially refused H-1B1 visa applications [17] without legal basis, but later determined that H-1B1 visas were not subject to the ban [20].
[1] INA 101(a)(15)(H)(i)(b1) (8 USC §1101(a)(15)(H)(i)(b1))
[2] INA 214(g)(8)(A) (8 USC §1184(g)(8)(A))
[3] 9 FAM 402.10-5(B)
[4] INA 214(i)(3) (8 USC §1184(i)(3))
[5] INA 214(c)(1) explicitly exempts the H-1B1 classification from its petition requirement.
[6] 9 FAM 402.10-5(D)
[7] Instructions for Petition for Nonimmigrant Worker
[8] USCIS-AFM 30.3(d)(3), archived August 24, 2019
[9] Ibid., (d)(7)(A)
[10] INA 214(g)(8)(C) (8 USC §1184(g)(8)(C))
[11] 8 CFR §274a.12(b)(9)
[12] https://www.uscis.gov/i-129-addresses
[13] INA 214(n) (8 USC §1184(n))
[14] 20 CFR §655.700(d)(1)
[15] 8 CFR §274a.12(b)(20)
[16] Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak
[17] https://twitter.com/gsiskind/status/1276381233602269185
[18] See 9 FAM 402.10-10(A)(a). Note that as the State Department's policy in this case is derived from INA 214(b) and 214(h), USCIS is bound to follow similar policy.
[19] 9 FAM 402.10-5(F)(a)
[20] https://twitter.com/gsiskind/status/1278766478477713409
[21] 8 CFR §274a.12(c)(26)