What are the main requirements for an H-1B1 visa (for Chileans)?

The H-1B1 is the professional work category created when Congress implemented the United States-Chile Free Trade Agreement. Six things have to line up before it is available, and they divide neatly between the applicant and the employer. Three concern the person: nationality, the credential, and temporary intent. Three concern the job: that it is a specialty occupation, that there is a real employer, and that the employer has filed a labor attestation with the Department of Labor.

• Chilean nationality. The category is limited to nationals of Chile. The statute defines that term by reference to Article 14.9 of the Free Trade Agreement, which adopts Annex 2.1: a chileno as defined in Article 10 of the Constitución Política de la República de Chile. Living in Chile, or holding permanent residence there, is not enough.
• A specialty occupation. For the H-1B1, INA 214(i)(3) defines this as an occupation requiring the theoretical and practical application of a body of specialized knowledge, together with a bachelor’s or higher degree in the specific specialty, or its equivalent, as a minimum for entry into the occupation. Engineering, mathematics, the physical and computer sciences, medicine and health care, education, biotechnology, and business specialties such as management and human resources are typical examples.
• A credential that matches the occupation. Article 14.9 of the Agreement requires a post-secondary degree in the specialty involving four or more years of study, or the equivalent. A footnote records that the United States recognizes the Chilean licenciatura and título profesional, and higher Chilean degrees, as qualifying. Four professions may use substitute credentials instead. See the exceptions to the post-secondary degree requirement.
• An employer, not self-employment. The category is built around an offer of employment, so self-employment and independent contracting do not fit it. See whether an H-1B1 applicant may be self-employed.
• A labor condition application from the employer. This is the step most often missed. No one may be admitted or granted H-1B1 status unless the employer has filed an attestation with the Department of Labor under INA 212(t)(1), covering wages, working conditions, the absence of a strike or lockout, and notice to employees or their bargaining representative.
• Temporary intent. The employment must be temporary, and the applicant must be prepared to show an intention to depart. See whether an H-1B1 applicant may intend to immigrate.

More on the labor attestation. The Department of Labor’s regulations cover this category expressly. 20 CFR 655.700 states that employers seeking to employ workers in specialty occupations under H-1B, H-1B1 or E-3 visas must file a labor condition application, and 20 CFR 655.730 applies the filing process to all three. The filing is made through the Department of Labor, and it may be submitted no earlier than six months before the start of the intended employment. Because the attestation is a precondition to admission rather than a formality at the end, the sequence matters: the attestation comes first, the visa application second.

Why temporary intent is a real requirement here. INA 214(b) presumes every applicant to be an intending immigrant until the contrary is shown. That presumption is lifted for most H-1B applicants and for L and V nonimmigrants, but the statute expressly carves the H-1B1 subclause back in, so the presumption continues to apply. The Free Trade Agreement points the same way, defining temporary entry as entry without the intent to establish permanent residence. This is the sharpest practical difference between the H-1B1 and the traditional H-1B, where dual intent is tolerated.

What is presented, and to whom. Section D of Annex 14.3 sets out the showing: proof of nationality, documentation describing the engagement and the purpose of entry, and documentation of the relevant minimum educational requirements or alternative credentials. The same Section bars either country from requiring prior approval procedures, petitions or labor certification tests as a condition of entry, while separately allowing an attestation of compliance with labor and immigration laws. That is why the Department of State describes the H-1B1 as a category that is not petition-based, and why a qualifying applicant abroad can ordinarily apply at a consular post without waiting for USCIS to approve an employer petition first.

Inside the United States. A person already in the United States in a status that permits it may request a change to H-1B1 instead of traveling for a visa, and extensions of stay are requested on Form I-129, which 8 CFR 214.1(c)(1) lists for H-1B1. See changing status to H-1B1 from within the United States.

Two things the requirements list does not include. A professional license is not part of the classification test, although it may well be needed to practice once here, and certain health care occupations face a separate certification requirement. See the special licensing requirements. Nor is there any obligation to use this category at all: a Chilean national who meets the H-1B1 requirements may still choose the traditional H-1B. See whether Chileans may still apply for traditional H-1B visas.

Once granted, H-1B1 status runs one year at a time and is extended in one-year increments. See the maximum validity of H-1B1 visas and extensions and renewals, or return to the H-1B1 overview for Chileans.