- Overview: Aliens Normally Classifiable as H1 or H3
The B1 nonimmigrant visa classification exists for certain visitors traveling to the United States for business. Situations in which a B1 visa is appropriate are outlined in the Department of State's (DOS's) Foreign Affairs Manual (FAM). In this article, we will use the FAM to examine situations in which an alien normally classifiable as an H1 or H3 nonimmigrant may instead be eligible for a B1 visa. We discuss both the H1 and H3 categories in our website's section on Work Visas [see category].
Before reading this article on B1 in lieu of H1 or H3, please see our overview of the B1 category [see article] and our collection of B1 articles [see category]. Additionally, please see our selection of articles on other circumstances discussed in the B1 category where B1 visas are applicable:
- B1 Status: Employment Incidental to Business Activities [see article]
- B1 Status: Personal Employees and Domestic Workers [see article]
- B1 Status: Certain Other Business Activities Classifiable as B1 [see article]
- B1 Status: Entertainers and Artists [see article]
9 FAM 402.2-5(F) outlines circumstances in which an alien who would qualify for an H1 or H3 visa may be appropriately classified as B1. However, if the alien is classified as B1 in lieu of H1 or H3, he or she will be subject to all of the limitations of the B1 visitor for business category. An alien classified as B1 in lieu of H1 or H3 cannot receive any salary or remuneration from a U.S. source, exempting an expense allowance or other reimbursement for expenses incurred incidental to his or her stay in the United States. Instead, the B1 nonimmigrant, like all other B1 nonimmigrants, must receive his or her remuneration or income for services performed in the United States from a business entity located abroad.
In 9 FAM 402.2-5(F)(a)(1), the DOS explains regarding “foreign-sourced remuneration” for services performed in the United States that where a U.S. business enterprise or entity has a separate business enterprise abroad, salary paid by the business enterprise abroad is not considered to be coming from a “U.S. source.”
At 9 FAM 402.2-5(F)(a)(2), the DOS states that in order for an employer to be considered a “foreign firm,” it must have an office abroad and the payroll must be disbursed abroad. In order for an alien to qualify for a B1 visa in lieu of H1 or H3, he or she “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…”
Accordingly, the first point if inquiry in determining whether an alien who would qualify for an H1 or H3 visa is classifiable as B1 is the nature of his or her employer. The employee must be customarily employed by a foreign firm and that firm must pay his or her salary from a foreign source. These requirements are in line with the general requirements and restrictions of the B1 category.
9 FAM 402.2-5(F)(1) addresses incidental expenses or remuneration. As we discussed above, B1 visitors for business are not permitted to receive a salary from a U.S. source for services rendered while in the United States. However, as we also noted, a U.S. source may provide the alien with an expense allowance or reimbursement for expenses incurred incidental to the temporary stay in the United States. The FAM states that such 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.” In short, the allowance or reimbursement must be limited to covering actual reasonable incidental expenses incurred by the alien during his or her stay. It is not an invitation for a U.S. source to provide a salary for work performed by the B1 visitor in the United States. Any “reimbursement” outside of the scope of 9 FAM 402.2-5(F)(1) would potentially constitute a violation of B1 status. When in doubt, it is best to consult with an experienced immigration attorney for guidance.
Section 212(q) of the Immigration and Nationality Act (INA) explicitly allows B1 nonimmigrants to accept honorarium payments and reimbursements for associated incidental expenses for usual academic activities. Under statute, the activity or activities may not be in excess of nine days at a single institution. The B1 nonimmigrant may not received payment or expenses from more than five institutions in the previous six-month period. The institution or organization must be described in section 212(p)(1) of the INA. Accordingly, it may be a:
- “Institution of higher education” as defined in 20 U.S.C. 1101(a) [see article], or a related nonprofit entity; or
- A nonprofit research organization or a Governmental research organization.
In addition to the statutory description, 9 FAM 402.2-5(F)(2) explains that “usual academic activities” can include:
- Guest teaching; or
- Performing in an academic sponsored festival.
As always, it is important to be forthright in applying for a B1 visa. When in doubt over whether a honorarium payment would be permissible under section 212(q), an individual or institution may opt to consult with an experienced immigration attorney for guidance.
Under 9 FAM 402.2-5(F)(3), a medical doctor otherwise classifiable as H1 may be classifiable as B1 if he or she is a member of the profession coming to the United States for the purpose of observing U.S. medical practices and consulting with colleagues on the latest medical techniques. The medical doctor may not receive remuneration from a U.S. source on the visit and may not be involved in patient care while on B1 status. For purposes of qualifying for a B1 visa, the failure to pass the Foreign Medical Graduate Examination (FMGE) is not relevant.
To start, please see our full article on H3 trainees to learn more about the H3 nonimmigrant visa category [see article].
9 FAM 402.2-5(F)(4) explains when an alien normally classifiable as H3 may be classifiable as B1. In order for such an alien to be classifiable as B1, all of the basic B1 requirements must be met. The FAM outlines the requirements for H3 that would be applicable to for an alien seeking a B1 visa in lieu of H3 as well (paraphrased):
- The proposed training is not available in the alien's own country;
- The alien will not be placed in a position in the normal operation of the business and in which citizens and permanent resident workers are regularly employed;
- The alien will not engage in productive employment unless such employment is incidental and necessary to the training; and
- The training will benefit the alien in pursuing a career outside the United States.
9 FAM 402.2-5(F)(4)(b) requires that the B1 trainee continue to receive a salary from his or her foreign employer and that he or she receive no salary or other remuneration from a U.S. source, other than an expense allowance or other reimbursement for expenses incidental to the temporary stay. Reimbursement may include for room and board. Interestingly, the FAM stated that a B1 visa should not be denied solely because the proposed training may last more than one year. In such a case, the consular officer must be satisfied that:
- The intended stay in the United States is temporary; and
- There is a definite time limitation to such training.
In general, an alien seeking a B1 visa to engage in training must satisfy consular officers that the training is finite and temporary and that he or she intends to return abroad promptly after completing the training for which the B1 visa was issued. Accordingly, he or she must demonstrate his or her ties abroad and that he or she would be able to complete the training without violating B1 status.
Whether a B1 visa is appropriate in lieu of H3 depends on the situation of the alien and the facts of the specific case. In general, it is wise to consult with an experienced immigration attorney for a case-specific assessment in order to determine which nonimmigrant visa category — if either — would be most appropriate for the proposed training and the overall goals of the applicant.
Under 9 FAM 402.2-5(F)(b), a B1 visa issued in lieu of an H1 or H3 visa must be annotated: “B-1 IN LIEU OF H, PER 9 FAM 402.2-5(F).”
For this reason, a B1 visa holder will know if his or her B1 visa was issued under the section discussed in this article.
9 FAM 402.2-5(F)(a)(3) makes clear that aliens classifiable as H2 temporary workers are not classifiable as B1. This does not change even if the alien's salary or other remuneration is being paid by a source outside the United States or if the alien is working without compensation.
The circumstances in which a B1 visa may be issued in lieu of H1 or H3 are generally limited and most relevant to those classifiable as H3 trainees. B1 visas are more limited than H visas, including for dependents. Before applying for the types of visas discussed in this article, it is wise to consult with an experienced immigration attorney. An attorney will be able to examine the situation and help an individual determine which nonimmigrant visa, if any, would be most appropriate for his or her intended purposes for seeking admission to the United States. It is also important to be forthright with consular officers when applying for a B1 visa. Consular officers will be able to identify situations in which the alien's stated reasons for coming to the United States do not fall within the confines of the B1 category.
While in the United States on B1 status, it is crucial to carefully follow the rules of B1 status. Violations of B1 visitor status can result in serious immigration consequences for the individual. When in doubt, a B1 visitor should seek expert guidance from an experienced immigration attorney.