Temporary Non-Immigrant Visas: Beyond The Basics

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Foreign nationals must meet the regulatory requirements for admission into the U.S. in nonimmigrant status. The purpose of this paper is to provide the Top 10 things to consider with respect to the most common nonimmigrant visa categories. This paper is designed for the advanced immigration practitioner. Each practitioner should stay up-to-date with any changes in legislation, regulations, agency interpretations and filing procedures that impact these nonimmigrant visa classifications.

TIP #1: B-1 IN LIEU OF H-1B AND H-3 VISAS SHOULD INURE TO THE BENEFIT OF AND THE FOREIGN NATIONAL SHOULD BE PAID BY A FOREIGN EMPLOYER -

The Foreign Affairs Manual (FAM) discusses how certain aliens who qualify for H-1B specialty occupation or H-3 trainee visas may more appropriately be classified as B-1 business visitor visa applicants in certain circumstances.2 For example, a foreign national eligible for an H-1B visa coming to the United States for the sole purpose of performing H- 1B caliber services in the U.S. may be better classified as a B-1 in lieu of H-1B. Similarly, a foreign national coming to the U.S. to receive training may be better classified as a B-1 in lieu of H-3. In either case, the B-1 visa applicant must not receive any salary or other remuneration from a U.S. source other than an expense allowance or other reimbursement for incidental expenses. The foreign national’s compensation or source of income must originate from the business entity abroad. The foreign entity must have an office abroad and its payroll must be disbursed abroad. The employee must customarily be employed by the foreign entity.

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