B-1 Visa

B-1 status does not enable a foreign national to be employed in the United States. However, applicants may make brief trips to the U.S. for limited business activities. Engaging in business for purposes of B-1 classification generally entails business activities other than the performance of skilled or unskilled labor.

Foreign nationals may be eligible for B-1 status if they are traveling to the United States to:

(1) Engage in commercial transactions that do not involve gainful employment in the U.S.;
(2) Negotiate contracts;
(3) Consult with business associates;
(4) Litigate;
(5) Participate in scientific, educational, professional or business conventions, conferences or seminars;
(6) Undertake independent research;
(7) Install, service, or repair commercial or industrial equipment purchased from a company outside the U.S. or to train U.S. workers to perform such services. However, in such cases, the contract of sale must specifically require the seller to provide such services or training and the visa applicant must possess specialized knowledge essential to the seller's contractual obligation to perform the services or training and must receive no remuneration from a U.S. source;
(8) Establish business ventures, such as leasing office space and recruiting staff, provided that the B-1 visa holder does not perform productive labor or actively participate in management of the business prior to being granted E-2 status.

Specific Professionals that Qualify for B-1 Status. The following professionals may enter the U.S. and engage in employment, provided: (1) any salary or other remuneration is incidental, or (2) the source of the salary or other remuneration is a foreign entity:

(1) Certain members of religious and charitable organizations;
(2) Members of religious denominations entering the U.S. to perform missionary work;
(3) Certain professional athletes;
(4) Personal or domestic employees of U.S. citizen employers temporarily assigned to the U.S.;
(5) Personal or domestic employees of certain foreign nationals in nonimmigrant status;
(6) Crewmen of a private yachts; and
(7) Certain foreign airline employees.

Salary or Other Remuneration from a Foreign Source. To qualify for B-1, it is essential that the remuneration or source of income for the services performed in the U.S. continue to be provided by the business entity located abroad.

Where a U.S. business has a separate business enterprise abroad, any salary paid by such foreign entity is not considered to be a U.S. source. A foreign entity is one that has an office abroad and its payroll is disbursed abroad. To qualify for B-1 status, the employee must be customarily employed by the foreign entity, the employing entity must pay the employee's salary and the source of the employee's salary must be abroad.

H-3 Status

An H-3 visa allows a foreign national to enter the United States at the invitation of an organization or individual for the purpose of receiving training in any field. However, it does not apply to physicians. The following conditions must be met:

(1) The training is not available in the foreign national's own country;
(2) The beneficiary will not be placed in a position which is in the normal operation of the business and in which citizen and resident workers are regularly employed; and
(3) The training will benefit the foreign national in pursuing a career outside the U.S.

The petition must include a statement describing the type of training and supervision to be given and the structure of the training program. The employer must further specify the proportion of time that will be given to productive employment and the number of hours to be spent in classroom instruction and in on-the-job training.

The statement must also describe the career abroad for which training will be provided, the reasons training is not available in the foreign national's country and why training is needed in the U.S. Lastly, the employer must indicate the source of remuneration received by the trainee and any benefit that will accrue to the petitioner for providing the training. If approved, H-3 status may be granted for up to two years.

J-1 Exchange Visitor

A J-1 exchange visitor is a foreign national coming to the U.S. to participate in an exchange visitor program without the intention of abandoning their foreign residence.

The foreign national must be entering the U.S. as a trainee, student, professor or research scholar, short-term scholar, non-academic specialist, foreign physician, international visitor, teacher, government visitor, camp counselor, au pair, or summer student in travel/work program. The purpose of the exchange visitor program is limited to teaching, studying, observing, conducting research, consulting and receiving training.

Two-Year Foreign Residency Requirement

Certain individuals in J status must return to their home country or country of last residence for two years upon completion of their training before they can adjust status, apply for an immigrant visa, or change to H or L nonimmigrant status. The following persons are subject to this requirement:

(1) J visa holders whose participation in the program was financed, in whole, or in part, directly or indirectly, by an agency of the U.S. government, or the government of his or her nationality or last residence;
(2) J program participant who, at the time of admission or acquisition of status, was a national or resident of a country which the Department of State had designated as requiring the services of persons engaged in a field in which the alien was engaged. (Department of State 'Exchange Visitor Skills List"); and
(3) J visa holder who entered the U.S. to receive graduate medical education or training.

Waivers of the Two-Year Requirement

A waiver of the two-year foreign residency requirement may be obtained in the following cases:
(a) Possible Persecution Compliance with the two-year requirement would subject the foreign national to persecution on account of race, religion or political opinion;
(b) Exceptional Hardship The foreign national's departure from the U.S. would impose exceptional hardship on a U.S. citizen or lawful permanent resident spouse or child;
(c) No Objection of Foreign Country A waiver may be obtained through a statement of no objection by the exchange visitor's country of nationality or last legal permanent residence;
(d) Public Interest Waiver may be granted upon the request of a U.S. agency if the exchange visitor is actively and substantially involved in a program or activity sponsored by or of interest to such agency. The agency must show that the granting of the waiver is in the public interest and compliance with the requirement would be detrimental to the program/activity; or
(e) International Medical Graduate A waiver may be obtained through a recommendation issued by an interested state or federal agency interested in facilitating the physician's employment in a designated medically underserved area.

Intra-Company Transfers

L status allows international employers to temporarily transfer qualified employees to the U.S. To qualify, the foreign national must have been employed continuously abroad for one of the previous three years as a manager, executive or person with specialized knowledge and be transferred to the U.S. to work in a position that utilizes such knowledge and skills. Further, the U.S. company must be a branch, subsidiary, affiliate or joint venture partner of the foreign employer.

Blanket L Visas

Blanket L visas are available to large U.S. companies that are branches, subsidiaries or affiliates of a foreign company that frequently transfers foreign employees to the U.S. In this case, it is the company and not the employee that receives blanket L status, which allows the U.S. company to easily bring in key employees. Blanket L petitions are initially approved for three years.

H-1B Status

An H-1B visa allows a U.S. employer to temporarily hire a foreign national in a specialty occupation. A specialty occupation is an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor and which usually requires a bachelor's degree or higher, or its equivalent. H-1B professionals include doctors, engineers, professors, researchers, accountants, health care personnel, architects and computer professionals.

An H-1B visa may initially be obtained for a period of three years and is generally renewable for up to six years. A specific job offer from a U.S. employer is required to obtain an H-1B visa and the employer must petition on behalf of the employee. The job being offered must qualify as a specialty occupation and the foreign national must meet certain requirements. To qualify, an employee must:

(1) Show the attainment of a baccalaureate or higher degree from an accredited U.S. college or university;

(2) Show the attainment of a foreign degree determined to be the equivalent of a U.S. baccalaureate or higher degree;

(3) Show that he/she holds full state licensure to practice in the occupation, if such licensure is required, in the state of intended employment; or

(4) Show that he/she has experience in the specialty equivalent to the completion of a baccalaureate or higher degree, and "recognition of expertise in the specialty through progressively responsible positions relating to the specialty."

Labor Condition Application

The U.S. Department of Labor (DOL) must certify that the employer has filed a Labor Condition Application (LCA) before an H-1B visa may be granted. The employer must state the following in the LCA:

(A) The employer will pay the H-1B employee at least the greater of (1) the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or (2) the prevailing wage level for the occupational classification in the area of employment;

(B) The employment of a foreign national will not adversely affect the working conditions of workers similarly employed;

(C) There is not a strike or lockout in the course of a labor dispute in the occupational classification at the place of employment;

(D) The employer, at the time of filing the application:

(i) Has provided notice to the bargaining representative (if any) of the employer's employees in the occupational classification and area for which nonimmigrants are sought, or

(ii) If there is no such bargaining representative, has provided notice by physical posting in conspicuous locations at the place of employment or electronic notification to employees in the occupational classification for which H-1B nonimmigrants are sought.

The employer must keep certain records available for public examination at the employer's principal place of business or worksite. These records include:

(1) A copy of the completed LCA;

(2) Documentation containing the wage rate to be paid the H-1B nonimmigrant;

(3) A full, clear explanation of the system used to set the "actual wage" the employer pays workers in the occupation for which the H-1B nonimmigrant is sought, including any periodic increases which the system may provide--e.g., memorandum summarizing the system or a copy of the employer's pay system or scale;

(4) Documentation used to establish the "prevailing wage" for the occupation; and

(5) Documentation showing that the employer satisfied the notice requirement to employees, by means of a bargaining representative or posting.

These records must be retained for one year beyond the end of the period of employment specified on the labor condition application or one year from the date the labor condition application was withdrawn.

Teressa Accurso Dickman
Law Offices of Teressa Accurso Dickman, P.A.
www.ImmigratingToAmerica.com