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Alternatives to the H-1B Visa


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

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Alternatives to the H-1B Visa

  1. 1. Strategies for Pursuing Green Cards in an Age without H-1Bs Greg Siskind Nathan Waxman Paige Taylor
  2. 2. B-1 Business Visitors <ul><li>Have a residence in a foreign country, which they do not intend to abandon; </li></ul><ul><li>Intend to enter the United States for a period of specifically limited duration; and </li></ul><ul><li>Seek admission for the sole purpose of engaging in legitimate activities relating to business. </li></ul>
  3. 3. B-1 Business Activities <ul><li>Participate in seminars, conventions and conferences </li></ul><ul><li>Consult with business associates </li></ul><ul><li>Negotiate contracts </li></ul><ul><li>Litigation </li></ul><ul><li>Independent research </li></ul><ul><li>Some types of training programs (orientation, classroom-based training, etc. </li></ul>
  4. 4. B-1 activities (cont.) <ul><li>Board of directors meetings and related activities </li></ul><ul><li>Investors scoping out investment opportunities and engaging in startup activities </li></ul><ul><li>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). </li></ul><ul><li>Medical “elective clerkships” (different from J-1s) and MDs coming to observe treatments in the US </li></ul><ul><li>Trade shows </li></ul><ul><li>Honoraria </li></ul>
  5. 5. B-1 tips <ul><li>The applicant must have specific and realistic plans for the entire period of the contemplated visit. </li></ul><ul><li>In evaluating these cases, you should not focus on the absolute length of the stay, but on whether the stay has some finite limit. </li></ul><ul><li>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. </li></ul><ul><li>Salary from abroad and adequate resources to show no need to work illegally </li></ul>
  6. 6. Hira case <ul><li>Mentioned in the FAM </li></ul><ul><li>Involved tailor coming to take measurements for suits manufactured abroad </li></ul><ul><li>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. </li></ul>
  7. 7. Advisory Opinions from DOS <ul><li>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: </li></ul><ul><li>Occupation of the applicant; </li></ul><ul><li>Type of work to be performed; </li></ul><ul><li>Place and duration of the contemplated employment; </li></ul><ul><li>Source and amount of salary to be paid; </li></ul><ul><li>Identity of United States and/or foreign employer; </li></ul><ul><li>Your reasons for believing B-1 classification appropriate; and </li></ul><ul><li>Any other relevant information. </li></ul>
  8. 8. B-1 in lieu of H-1B <ul><li>“ 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 </li></ul>
  9. 9. B-1 in lieu of H-1B <ul><li>Remuneration or source of income for services performed in the United States continue to be provided by the business entity located abroad </li></ul><ul><li>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;” </li></ul><ul><li>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 </li></ul>
  10. 10. B-1 in lieu of H-1B- consular practices <ul><li>Shanghai – considers circumstances and length of trip and will suggest H-1B if over six months </li></ul><ul><li>Copenhagen – “reluctant” to do it </li></ul><ul><li>Berlin – tries to accommodate due to large number German multinationals with substantial US operations </li></ul><ul><li>Tokyo, Manila, Chennai and New Delhi – “follows FAM” </li></ul><ul><li>Amman – “rarely” approves but requires substantial documentation including letter from foreign employer </li></ul><ul><li>Kuala Lumpur – Must show intent to return to employment abroad; will not issue “in anticipation of H-1B” </li></ul><ul><li>Juarez – Possible, but not recommended </li></ul><ul><li>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 </li></ul>
  11. 11. The Legislative Horizon <ul><li>The bright side of no CIR – bills can actually move </li></ul><ul><li>SKIL Act </li></ul><ul><ul><li>More H-1Bs </li></ul></ul><ul><ul><li>More green cards </li></ul></ul><ul><ul><li>New categories for STEM professions </li></ul></ul><ul><ul><li>Green card cap exemptions </li></ul></ul><ul><li>Numbers Bill </li></ul><ul><li>MDs, Nurses, Arts/Sports </li></ul>