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H1B / B-1 in Lieu of H-1B

Overview

Brief Background on the H-1B Visa

The H-1B visa authorizes foreign workers to be employed by United States employers for three years, with a possible extension of three more years. Under this visa, a potential U.S. employer must file an H-1B visa petition with the U.S. Citizenship and Immigration Services (USCIS). A foreign worker must perform services in a “specialty occupation,” defined as an “occupation that requires theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelor’s degree or higher in the specific specialty as a minimum for entry in the occupation in the U.S.” Some examples of “specialty occupations” include accountants, computer programmers, fashion designers, graphic designers, journalists, ministers, and pharmacists.

The H-1B petition process has several steps. First, a foreign worker shall be offered a job, which should be within the definition of a “specialty occupation,” from a U.S. employer. The employer must then file a Labor Condition Application with the Department of Labor (DOL) to show that: (1) the employer will pay the H-1B workers the prevailing wage level for the occupation in the area of intended employment; (2) the employer will offer the same benefits package on the same basis to similarly employed U.S. workers and H-1B workers; and (3) the employment of H-1B workers will not adversely affect the working conditions of workers similarly employed in the area. After the DOL certifies the LCA, the U.S. employers files a non-immigrant employment petition (petition for H-1B) with the USCIS. It is through this application that the U.S. employer must show that the alien will be employed in a qualifying specialty occupation and that the alien has the necessary qualifications for this position.

B-1 Aliens Normally Classifiable as H-1 (B-1 in lieu of H Visa)

There are cases where aliens who qualify for H-1 visas are more appropriately classified as B-1 visa applicants. In such a case, the applicant must not receive any salary or other remuneration from a U.S. source other than an expense allowance or other reimbursement for expenses incidental to the alien’s temporary stay. It is essential that the remuneration or source of income for services performed in the United States continue to be provided by the business entity located abroad, and that the alien meets the following criteria:

(1) Where a U.S. business has a separate business enterprise abroad, the salary paid by such foreign entity shall not be considered as coming from a U.S. source.

(2) In order for an employer to be considered a “foreign firm,” the entity must have an office abroad and its payroll must be disbursed abroad. To qualify for a B-1 visa, the employee must customarily be employed by the foreign firm, the employing entity must pay the employee’s salary, and the source of the employee’s salary must be abroad.

Incidental Expenses or Remuneration: A non-immigrant in B-1 status may not receive a salary from a U.S. source in connection with his or her activities in the U.S. They may provide the alien though with an allowance or reimbursement for expenses incidental to the temporary stay. Incidental expenses may not exceed the actual reasonable expenses the alien will incur in traveling to and from the event, together with living expenses the alien reasonably can be expected to incur for meals, lodging, laundry, and other basic services.

Honorarium Payment: A B-1 non-immigrant may accept an honorarium payment and incidental payment for expenses in usual academic activities such as lecturing and guest teaching if: (1) the activity lasts no longer than 9 days at any institution; (2) payment is offered by an institution or organization; (3) the honorarium is for services conducted for the benefit of the institution or entity; and (4) the alien has not accepted such payment or expenses from more than five institutions or organizations over the last six months.

Entertainers: Except in certain cases, the B status is not appropriate for a member of the entertainment profession who seeks to enter the U.S. temporarily to perform services as they will be accorded a P classification. They be classified as B-1 though if he or she: (1) is coming to the U.S. to participate only in a cultural program sponsored by the sending country; (2) will be performing before a nonpaying audience; and (3) all expenses will be paid by the member’s government. A professional entertainer can also obtain B-1 classification if he or she is coming to the U.S. to participate in a competition for which there is no remuneration other than a prize and expenses.

Still Photographers: The Department of Homeland Security (DHS) permits still photographers to enter the United States with B-1 visas for the purpose of taking photographs, provided that they receive no income from a U.S. source.

Musicians: An alien musician may be issued a B-1 visa, provided: (1) The musician is coming to the U.S. to use recording facilities for recording purposes only; 2) The recording will be distributed and sold only outside the U.S; and (3) No public performances will be given.

Medical Doctor: A medical doctor otherwise classifiable as H-1, whose purpose in the U.S. is to observe medical practices and consult with other doctors on the latest techniques, provided no remuneration is received from a U.S. source and no patient care is involved, can enter through a B-1 instead of an H status.

Artists: An artist coming to the U.S. to paint, sculpt, etc. who is not under contract with a U.S. employer and who does not intend to regularly sell such art-work in the U.S. may come in a B-1 visa in lieu of H-1.

U.S. – Singapore Free Trade Agreement Professional (H1B1) Visa

http://singapore.usembassy.gov

The U.S. - Singapore Free Trade Agreement, which took effect on January 1, 2004, creates a new class of non-immigrant work visas for Singaporean citizens: the H1B1. The visa allows you to live and work in the United States.

(1) The position must be a specialty occupation.

(2) You must have a post-secondary degree involving at least four years of study in your field of specialization.

(3) You cannot be self-employed or an independent contractor.

(4) The period of employment in the U.S. must be temporary, so that you must demonstrate non-immigrant intent. This requirement makes this visa different from traditional H-1B petitions since in the traditional visa, applicants do not have to demonstrate intent to return to the home country.

(5) Unlike a traditional H-1B application, the employer does not have to submit Form I-129 to the Bureau of Citizenship and Immigration Services and you do not need to obtain a Notice of Action, Form I-797.

(6) H1B1 visas are multiple-entry and valid for a maximum of 18 months. Extensions and renewals are allowed.

Using the B-1 Visitors Visa for Business

An alien is classifiable as a non-immigrant visitor for business (B-1) if the consular officer is satisfied that: (1) the alien intends to leave the US at the end of the temporary stay, (2) the alien has permission to enter a foreign country at the end of the temporary stay; and (3) adequate financial arrangement have been made to enable the alien to carry out the purpose of the visit to and departure from the U.S.

The term business refers to conventions, conferences, consultations and other legitimate activities of a commercial or professional nature. The aliens should be traveling to the United States to: (1) engage in commercial transactions, which do not involve gainful employment in the United States, (2) negotiate contracts; (3) consult with business associates; (4) litigate; (5) participate in scientific, educational, professional, or business conventions, conferences, or seminars; or (6) undertake independent research. Aliens coming to the U.S. for the purpose of pursuing employment which does not qualify them from A, C, D, E, G, H, I, J, L, O, P, Q or NATO status must be classified as immigrants. Exception is given to aliens who meet the criteria of several categories including these two.

Members of Religious and Charitable Events: These members must have no plans to take permanent appointment with a church and must be supported by offerings contributed at each evangelical meetings. Also included are religious workers doing missionary work if such work does not involve the selling of articles or solicitation and acceptance of donations, and receives no salary/remuneration except expenses.

Professional Athletes: Professional athletes such as golfers and auto racers, who receive no salary or payment other than prize money for his or her participation in a tournament or sporting event. Athletes or team members who seek to enter the United States as members of a foreign based team in order to compete with another sports team shall be admitted provided: (1) The foreign athlete and the foreign sports team have their principal place of business or activity in the foreign country; (2) The income of the foreign based team and the salary of its players are principally accrued in a foreign country; and (3) The foreign based sports team is a member of an international sports league or the sporting activities involved have an international dimension.