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Debra A. Schneider

Debra A. Schneider Immigration

dschneider@fredlaw.com
612.492.7214
Printable Version

United States Free Trade Acts Benefit U.S. Employers and Nationals of Mexico, Chile, and Singapore

By: DEBRA A. SCHNEIDER

May 2004

Recent changes have made it easier for nationals of Mexico, Chile, and Singapore to work for U.S. employers or for themselves in the United States. Through the use of trade agreements, immigration regulations now provide greater freedom of movement for workers, as well as new options for professionals, investors, and trade entrepreneurs.

Chile and Singapore

President George W. Bush recently signed into law the United States-Chile and United States-Singapore Free Trade Agreement Implementation Acts. The acts create a new H-1B1 nonimmigrant classification for sponsored Chilean and Singaporean professionals coming to the U.S. to perform services in a specialty occupation. This applies to a national of Chile or Singapore who is engaged in a specialty occupation requiring at least:

  • theoretical and practical application of a body of specialized knowledge; and
  • attainment of a post-secondary degree in the specialty requiring four or more years of study (or the equivalent of such a degree).

Chilean professionals working as agricultural managers and physical therapists and Chilean and Singaporean professionals working as disaster relief claims adjusters can present alternate educational credentials. In addition, management consultants from both countries can present alternative documentation establishing experience in the area of specialization.

The new H-1B1 category encourages and facilitates the entry of business professionals to and from Chile, Singapore, and the United States. While there is no limit to the number of U.S. workers who can work in Chile or Singapore, no more than 5,400 Singapore nationals and 1,400 Chilean nationals will be allowed to enter the United States under this new nonimmigrant category.

The new H-1B1 is distinct from the general nonimmigrant category H-1B not only because it is country-specific, but due to four unique factors.. First, there is no 6-year limit; an individual is granted an H-1B1 for a one-year period that can be renewed indefinitely. Second, if the professional is abroad, the first H-1B1 is applied for directly with the U.S. Department of State overseas. Once an H-1B1 is received from the State Department, or if the professional is in the United States in another nonimmigrant category and seeks to change status to an H-1B1, the extension or change of status application is applied for within the United States through the Citizenship and Immigration Service. Third, the new H-1B1 category does not require filing a non-immigrant petition. Only the attestation, filed by the employer with the Department of Labor, is required. The turnaround is expected to be prompt. The Department of Labor must provide certification based upon the attestation with seven days of its filing. The State Department will grant H-1B1 status based on whether the prospective job and employee meet stated standards depending on the type of occupation, and the employee's education and experience. Fourth, the H-1B1 professional must establish nonimmigrant intent - meaning that they do not intend to become permanent residents of the United States. Extensions and renewals are allowed but adjustment of status to legal permanent residency is not. Therefore, it is important to consult with counsel early if the employee's nonimmigrant intent has changed.

E Visas for Treaty Trader and Investor Countries

The Acts also added Chile and Singapore to the list of treaty trader and investor countries. Citizens of Chile or Singapore now can qualify for E visa status if they:

  • plan to solely carry on substantial trade (international in scope) between the U.S. and Chile or Singapore; or
  • plan to solely develop and direct the operations of an enterprise in which the foreign national has invested, or are actively investing substantial capital in a bona fide enterprise; or
  • are key employees, including executives and supervisors or persons whose services are essential to the efficient operation of the enterprise; or
  • are principal employers (a treaty national or an enterprise or organization that is 50% or more owned by a treaty national).

E visa status will encourage business development in the United States and expand trade between the U.S. and Chile and Singapore. E status is a nonimmigrant category, but its many advantages include allowing the E visa spouse employment authorization.

NAFTA

The passage of the North American Free Trade Agreement (NAFTA) on December 8, 1993 created a nonimmigrant category (TN) to facilitate the temporary employment of qualified Mexican professionals in the United States. As of January 1, 2004, Mexican TN applicants are no longer required to apply for a labor condition application from the Department of Labor or even file a nonimmigrant petition with the Citizenship and Immigration Services. Those with job offers from U.S. employers in qualifying fields need only apply directly at the U.S. Consulate in Mexico. The applicant should be prepared to present documentation establishing his or her qualifications for employment, professional responsibilities, and travel plans during the required interview.

TN status is granted in one-year increments; extensions or other changes are processed by the Citizenship and Immigration Services at the Nebraska Service Center. This provides a simpler and more efficient process for U.S. employers to hire Mexican professionals, especially in light of the fact that the H-1B 65,000 cap was reached on February 17, 2004.

These developments provide great opportunities for U.S. businesses and international professionals. It will be faster and less paper-intensive for Mexican business professionals to document their TN eligibility and enter the United States. Employee transfers between the U.S., Chile, and Singapore will be much more feasible and, for the first time, Chilean and Singaporean investors and business traders can obtain nonimmigrant status based upon their U.S. business or investment.