On September 3, 2003, President Bush signed free trade agreements (FTAs) with Chile (P.L. 108-77) and Singapore (P.L. 108-78) into law. Both laws contained immigration provisions.

Both FTAs carved out a new temporary worker visa category (H-1B1) which combines features from both the current TN (NAFTA) and H-1B categories. One change of significance to all H-1B nonimmigrants is the fact that the number of visas reserved for temporary workers for Chilean and Singaporean nationals under the FTAs will be drawn from the overall number of H-1B visas available per fiscal year (H-1B cap).

On October 1, 2003, the annual H-1B cap reverts to 65,000 per year (down from the current level of 195,000 per year). Given the current economic and anti-immigration climate, it is doubtful that the H-1B cap will be raised in the short term. Any "new" H-1B visa petitions are counted against the cap. This means that any individuals who will be changing status to H-1B or who will need to apply for their first H-1B visa prior to being admitted to the United States as an H-1B nonimmigrant are counted against the annual cap. Once an individual has been admitted to the United States as an H-1B nonimmigrant, subsequent petitions to extend their stay or change employment do not count against the cap so long as they remain in H-1B status.

The FTAs reserve a total of 6800 visas (Chile: 1400 and Singapore: 5400), or more than 10% of the 65,000 total number of visas available each year. This represents a significant reduction in available H-1B numbers on an annual basis.

The new H-1B1 category for Chilean and Singaporean nationals appears to be a hybrid between the TN and H-1B categories. The following represents the basic features of the new H-1B1 category:

1. Valid in 1 year increments;

2. Labor Condition Application required; and

3. Must have nonimmigrant intent (i.e., the intent to return home and not to immigrate to the United States).

At this time, there have been no implementing regulations or memoranda issued by the Citizenship and Immigration Service. We will post updates to our web site as they become available.

© 1999-2012, Jackson & Hertogs - All rights reserved