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Alternatives to the H-1B Visa

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Strategies to consider when the H-1B is not available.

Strategies to consider when the H-1B is not available.

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  • 1. Strategies for Pursuing Green Cards in an Age without H-1Bs Greg Siskind Nathan Waxman Paige Taylor
  • 2. B-1 Business Visitors
    • Have a residence in a foreign country, which they do not intend to abandon;
    • Intend to enter the United States for a period of specifically limited duration; and
    • Seek admission for the sole purpose of engaging in legitimate activities relating to business.
  • 3. B-1 Business Activities
    • Participate in seminars, conventions and conferences
    • Consult with business associates
    • Negotiate contracts
    • Litigation
    • Independent research
    • Some types of training programs (orientation, classroom-based training, etc.
  • 4. B-1 activities (cont.)
    • Board of directors meetings and related activities
    • Investors scoping out investment opportunities and engaging in startup activities
    • Install, service, or repair commercial or industrial equipment or machinery purchased from a company outside the United States or to train U.S. workers to perform such services (must require specialized knowledge and no building/construction work).
    • Medical “elective clerkships” (different from J-1s) and MDs coming to observe treatments in the US
    • Trade shows
    • Honoraria
  • 5. B-1 tips
    • The applicant must have specific and realistic plans for the entire period of the contemplated visit.
    • In evaluating these cases, you should not focus on the absolute length of the stay, but on whether the stay has some finite limit.
    • The applicant must demonstrate permanent employment, meaningful business or financial connections, close family ties, or social or cultural associations, which will indicate a strong inducement to return to the country of origin.
    • Salary from abroad and adequate resources to show no need to work illegally
  • 6. Hira case
    • Mentioned in the FAM
    • Involved tailor coming to take measurements for suits manufactured abroad
    • The decision stated that this was an appropriate B-1 activity, because the principal place of business and the actual place of accrual of profits, if any, was in the foreign country.
  • 7. Advisory Opinions from DOS
    • You can seek a DOS advisory opinion when there is a question as to whether the activity is a legitimate B-1 activity not listed in the FAM. You must submit the following details:
    • Occupation of the applicant;
    • Type of work to be performed;
    • Place and duration of the contemplated employment;
    • Source and amount of salary to be paid;
    • Identity of United States and/or foreign employer;
    • Your reasons for believing B-1 classification appropriate; and
    • Any other relevant information.
  • 8. B-1 in lieu of H-1B
    • “ There are cases in which aliens who qualify for H-1 or H-3 visas may more appropriately be classified as B-1 visa applicants in certain circumstances, e.g. a qualified H-1 or H-3 visa applicant coming to the United States to perform H-1 services or to participate in a training program. 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.” - 9 FAM 41.31 N11
  • 9. B-1 in lieu of H-1B
    • Remuneration or source of income for services performed in the United States continue to be provided by the business entity located abroad
    • Where a U.S. business enterprise or entity has a separate business enterprise abroad, the salary paid by such foreign entity shall not be considered as coming from a “U.S. source;”
    • 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
  • 10. B-1 in lieu of H-1B- consular practices
    • Shanghai – considers circumstances and length of trip and will suggest H-1B if over six months
    • Copenhagen – “reluctant” to do it
    • Berlin – tries to accommodate due to large number German multinationals with substantial US operations
    • Tokyo, Manila, Chennai and New Delhi – “follows FAM”
    • Amman – “rarely” approves but requires substantial documentation including letter from foreign employer
    • Kuala Lumpur – Must show intent to return to employment abroad; will not issue “in anticipation of H-1B”
    • Juarez – Possible, but not recommended
    • Lagos – Scrutinized very closely; must show no US-sourced income; company credit cards in employee’s name to prove Nigerian employer will pick up costs
  • 11. The Legislative Horizon
    • The bright side of no CIR – bills can actually move
    • SKIL Act
      • More H-1Bs
      • More green cards
      • New categories for STEM professions
      • Green card cap exemptions
    • Numbers Bill
    • MDs, Nurses, Arts/Sports

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