President Signs Free Trade Agreements with Chile and Singapore

On September 3, 2003, President Bush signed the free trade agreements with Chile and Singapore. According to the terms of these agreements, effective January 1, 2004, Chile will become the first South American country and Singapore the first East Asian country to join in a bilateral pact to end tariffs, eliminate non-tariff barriers, open up financial and other services and protect intellectual property rights. The acts also contain important immigration provisions.

In particular, nationals of Chile and Singapore are now eligible to apply for E-visas as treaty-traders or treaty-investors. In general, to qualify for an E-visa, each visa applicant must be a citizen of the treaty country and the particular company sponsoring the visa applicant must be primarily owned or controlled by nationals of the treaty country.

For Treaty-Traders, the company sponsoring the visa applicant must be engaged in a substantial amount of trade principally between the U.S. and the treaty country. The individual visa applicant must be either a manager or executive (including an owner), or one who has essential skills and E-1 visas are available not only to those whose trade is in material goods, but also to those whose trade consists of services and technology.

For Treaty-Investors to qualify, the investment must be substantial and active. The investment must not be "marginal", i.e., one that supports only the investor's immediate family, and should create jobs in the U.S. Finally, the individual visa applicant must be either an investor who will "develop and direct the investment," a manager or executive, or a specially trained employee necessary for the development of the investment.

In addition, the acts contain provisions that provide for the creation of a new visa category, the H-1B (II). These provisions reserve 1,400 H-1B visa numbers for qualified professionals who are nationals of Chile and 5,400 H-1B visa numbers for qualified professionals who are nationals of Singapore. According to the provisions of the act, the initial period of admission will only be one year for individuals applying under this H-1B (II) category, as opposed to the initial allowable period of admission under the regular H-1B category. Extensions are available for the H-1B (II) category but are only available in increments of one year. Unfortunately, these reserved visa numbers actually will count against the H-1B cap. Given that the number of H-1B visas available per fiscal years has reverted back to 65,000, these provisions will further reduce and complicate the number of H-1B visas available.

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