Possible Administrative Immigration Relief

Without a doubt, the hottest topic on our firm’s discussion forum (www.immigration-information.com) has been the subject of possible immigration relief through administrative action. Originally, the President promised to enact such relief “before the end of summer.” Then, for political reasons, he backed off and now says that he will announce it “before the holidays are over.”

There are multiple aspects to administrative relief. Some things can be done by changes in administrative regulations. Others can be done through simple changes in policy, while some will require an executive order, signed by the President.

The most controversial proposals involve illegal immigrants. There are, however, a number of proposals that will benefit employment-based immigrants, if adopted.

The administration has already published a proposed regulatory change to give work authorization to certain H-4 spouses. As proposed, eligibility would be limited to spouses of H-1B nonimmigrants who have received extensions beyond six years. The employment authorization grant would be unlimited, meaning that the H-4 spouse could work for anyone, doing anything – full or part time. The final rule could be promulgated as early as the end of this month, though it will likely take longer.

The most beneficial proposal, for employment based immigrants, is the notion of reinterpreting the quota statute so that it only applies to principal applicants and not their dependents. Charles Oppenheim of the State Department’s Visa Office has speculated that if this happens, all EB quotas would become “current” immediately, and remain that way for several years at least. This provision was part of Senate bill 744, passed by the Senate last year with a 68-32 vote.

The administration is also said to be considering deportation relief for approximately 5.2 million individuals who are here illegally. Eligibility would be based on whether the individual has children (irrespective of their place of birth) in the United States. This would be similar to the DACA program announced in 2012.

Qualifying individuals would have to apply to the immigration service for inclusion in the program. If eligible, they would be given permission to remain in the U.S., unrestricted work authorization, and even permission to travel abroad and return.

The likely window for announcement of administrative relief, if any, will be between Thanksgiving and Christmas.

James R. Gotcher | Attorney

2015 FISCAL YEAR H-1B QUOTA

As you may know, the filing window for the H1b quota for the fiscal year 2015 will open on Tuesday, April 1st\ 2014. Each year, the government allocates 85,000 H1bs for employees who have never previously had an H1b filed on their behalf. Of these, 20,000 are set aside for holders of US Master’s degrees, and this is referred to as the “Master’s cap.” It is important to note that in order to qualify for the Master’s cap, the US Master’s program must be either a public or non-profit university and it must be accredited.

WHEN WILL THE QUOTA CLOSE THIS YEAR?

Four years ago, we saw the quota close in January of the following year. Three years ago, we saw it close in November and two years ago, it closed in June. This past year, it closed in the first week after having received 124,000 petitions for 85,000 spots.

Over the past two years, we have seen large consulting companies, who are experiencing numerous L1A and L1B denials, file large numbers of H1bs for their L employees in order to avoid disruption on their projects. As the L1 denials increase, so will the number of H1bs that these companies file when the filing window opens. For this reason, we are advising clients to file their cases on the first possible day (April 1, 2014) and to expect a lottery situation again.

WHO IS ELIGIBLE?

If the employee has already had an H1b approved on their behalf within the last six years, they are likely to be exempt from the quota unless they received an H1b from a cap-exempt employer like a non-profit or university. Most candidates for the H-1B quota are students on OPT, people overseas who have never had an H1b approved on their behalf, or spouses here in the US who are looking to obtain their first H1b.

Based on recent USCIS trends, the candidate must have at a minimum of either a US bachelor’s degree or the foreign equivalent in a field that is directly relevant to the position. The USCIS has recently cracked down on those who have a bachelor’s degree in a field that is not relevant to the position that the petitioner has filed for. A candidate holding a degree that is not directly relevant to the offered position can still be viewed as eligible, if they have about 3 to 6 years of documented experience in a relevant field as they can get an education evaluation that incorporates their experience and education. If you are not sure if you or a candidate, in the case of an employer, meets the requirements for an H1b, we suggest speaking with an immigration attorney before committing yourself to the process.

WHAT WILL I NEED TO PROVIDE?

In order to have a successful H1b filing, it is important that you have certain evidence for the filing. The USCIS will want to see that the Beneficiary has the education that is required for the H1b, and that the field of study is relevant to the position. The USCIS will also want to see that the position itself qualifies as a specialty occupation and that the Petitioner has non-speculative work for the Beneficiary. Further, the USCIS will evaluate all of the evidence to make sure that there is a valid employer/employee relationship present for the requested validity period. If you are not sure what evidence is required, we highly suggest speaking with an immigration attorney.

HOW MUCH WILL IT COST?

The H1b government filing fees are as such:
• I-129 fee- $325
• Fraud Prevention and Detection fee- $500
• ACWIA fee
o If Petitioner employs 25 or less full-time W2s- $750
o If Petitioner employs 26+ full-time W2s- $1,500
• If the Petitioner employs 50 or more full-time W2s and over 50% are in H1b or L1 status, there is an additional $2,000 filing fee
• If you choose to use premium processing- $1,225
• If the Beneficiary has a spouse and they must file an H4 application for them, the filing fee is $290.

Education and H1bs Part II

In our last article, we discussed how the USCIS views certain US degrees when adjudicating H1bs. In this article, we are going to discuss how the USCIS views Curricular Practical Training (CPT) when adjudicating H1bs.

Curricular Practical Training, often referred to as CPT, is provided to students who are enrolled in classes and would like to gain experience through internships, off-campus employment or co-operative programs that are directly linked to the student’s field of study. Unlike OPT, the student will receive course credit for their work.

In order to be eligible for CPT,

• The student must be in valid F-1 status,
• If the student is enrolled in an undergraduate program, they must wait 9 months (2 full semesters) before enrolling. If the student is enrolled in a graduate program, the school official can authorize CPT in the first semester if it is part of the course curriculum or if that type of experience is required by the program.
• The student’s CPT employer must enter into a cooperative agreement with the school
• The student must be enrolled in at least 3 units per semester and attending classes at the university during the CPT period

It is also important to understand that if a student uses one full year of CPT, that student is not eligible for OPT upon graduation. In order to be able to use both, the student must use less than one year of CPT and they should discuss this with the designated school official to ensure eligibility for OPT.

So how does this come into play with H1bs? The USCIS has been very skeptical of schools that provide CPT to students in their first semester. After Tri-Valley University was thrust into the spot light, the USCIS has started to issue Requests for Evidence (RFE) for those students who have attended certain schools and have utilized CPT during their studies. These RFEs show up on OPT filings and extensions as well as H1b filings and they all tend to request the same evidence so it is important that students keep the following documents in the event they receive an RFE.

In the aforementioned RFEs, the USCIS will request some or all of the following:

• Evidence of payment of tuition
• Receipts for books, parking, school supplies, etc.
• Student ID
• Copies of all executed I-20s
• Rental agreement to show that you were living near the school during the CPT period
• Class schedules
• Course syllabi that include course numbers/sections, instructor’s name, delivery method (in person/lecture, lab, online, tele-learning, etc.)
• Classroom location, meeting dates/times
• A statement from the Designated School Official that attests to the fact that the student was attending classes at the school and that the instructor was present as well
• A statement from the professor attesting to the fact that the student attended classes in-person.
• Copy of the cooperative agreement with the school and the CPT employer
• Letter from the CPT employer describing the position, duties, hours per week, jobsite location and employment dates
• Paystubs from the CPT employer covering the CPT employment period

As you can see, the USCIS is attempting to determine whether the CPT was related to the field of study, whether it was relevant to student’s program and whether the student actually attended classes at the school while working on CPT. If the student is unable to provide this evidence to the USCIS, their OPT request may be denied and if they are changing status to H1b, their request for the change of status may be denied as the USCIS would say that they are not maintaining their F1 status.

Students should always talk with the designated school official when applying for CPT, but it is also important that the student retain evidence regarding their CPT in the event of a Request for Evidence. CPT is legal and can provide valuable work experience for students, but it is critical for students to have a solid understanding of CPT and what the possible ramifications of CPT employment are in regards to their status and any future status they may apply for. Students should also be aware that unlike the situation with an H1B, CPT experience may not be used to qualify an applicant for an I-140 if the work was done for course credit or to fulfil a graduation requirement. Next article, we will focus on Optional Practical Training.

F-1 FAQ

When applying for a College or University, what should I look for in regards to how it will affect my future immigration filings?

If you intend to use your degree or advanced degree as the basis to gain work authorization or apply for an employment-based green card, it is important that the school is accredited by a recognized accreditation agency or association. The Department of Education’s website provides users with this information and is a good resource. For H1b purposes, an advanced degree from a for-profit, accredited program does not count towards the H1b Master’s quota. Curiously, the definition that the USCIS uses for the H1b Master’s quota is not the same as what they use for determining eligibility for Employment Based preference categories.

If I am enrolled in a program that offers Curricular Practical Training (CPT), is there anything I need to be aware of?

Yes, we will be addressing this issue in our next article in more detail. Right now, the USCIS is looking very closely at programs that issue CPT and those who receive/utilize it. Some programs issue it very quickly and without proper guidance which leads to problems for that student when they change status as they have not been maintaining proper status during that time. We will go into more detail in the article, but if a student is unsure of whether they are maintaining proper CPT status, they should write or email their Designated School Official to ensure they are in compliance.

What is the advantage of going to school as an F1?

The main advantage of F1 status is having the ability to engage in Curricular Practical Training (CPT) and Optional Practical Training (OPT). By having F1 status, a student can engage in work authorization that is permitted by either CPT or OPT. You may, however, attend as an H-4 or L2, in which case you will not be eligible for practical training, but you also don’t have to maintain a full course load. H and L nonimmigrants may also be eligible for in-state tuition, in many cases.

Is it true that I do not have to pay taxes if I work on my CPT or OPT?

Yes and no. You are required to pay certain taxes, but CPT and OPT employees are considered students by the IRS and therefore, they are exempt from FICA taxes as are their employers.

If I am here in another status and I want to switch to F1 status, do I need to get an F1 visa and re-enter?

No, while that is an option, you could also file a change of status here in the United States. The USCIS has recently expanded their ELIS Online filing system to include any Change of Status applications to F1 and the results have been good. ELIS filings are taking about 2 months and while the application is a bit more labor intensive, it is very efficient and manageable.

USCIS, H1bs and US Degrees

We have seen some disturbing trends in recent H1b Requests for Evidence (RFE) where the USCIS is questioning the Beneficiary’s (employee) education. Specifically, two recent types of RFEs have started to make their way out of the California Service Center. The first looks to the accreditation of the educational institution that the Beneficiary graduated from. More often, you see this where someone has gone to a non-accredited school and has applied for an H1b in the Master’s quota. The USCIS will issue a Request for Evidence in which they state that the school is unaccredited and they will request a degree from an accredited master’s program, which for most people, is not possible. This is not the disturbing trend – this is something that is in the regulations, but was not being enforced until recently. The disturbing trend is that they are issuing RFEs when a Beneficiary files an extension of status which state that they made a gross error previously when they approved the Beneficiary’s original H1b in the Master’s Quota and that they are in the process of revoking the H1bs. This RFE was shared with me by a friend of a client and when I followed up with the person to see how it turned out, he said that they re-filed it and it was approved. This sends mixed signals as on the one hand, you have an RFE in which they state that they are in the process of revoking the H1bs for a certain school and then you find that they approve the same case 2 weeks later.

The other disturbing trend has to do with whether the school qualifies as an Institution of Higher Education as defined by the Higher Education Act of 1965 Section 100(a). That term and definition is used to qualify for the Master’s quota. In order to qualify the school must meet these requirements:

(a) INSTITUTION OF HIGHER EDUCATION- For purposes of this Act, other than title IV, the term `institution of higher education’ means an educational institution in any State that–
(1) admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate;
(2) is legally authorized within such State to provide a program of education beyond secondary education;
(3) provides an educational program for which the institution awards a bachelor’s degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree;
(4) is a public or other nonprofit institution; and
(5) is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted pre-accreditation status by such an agency or association that has been recognized by the Secretary for the granting of pre-accreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time.

The recent RFEs seem to attack the 4th requirement regarding public or non-profit institutions. Some schools are for-profit and despite the fact that they are accredited, they do not qualify under the definition of an Institution of Higher Education that is used for determining eligibility for the Master’s quota. Again, we are seeing them issue a Notice of Intent to Deny (NOID) on an H1b extension or transfer that says that they made a gross error when they counted the Beneficiary against the Master’s quota and they are in the process of revoking the H1bs for that school.

So with all of this said, it seems that the USCIS is getting around to enforcing the regulations more strictly, especially in this area and it is important for a potential student to make an informed decision when deciding upon a degree program and school. Research the school and make sure it meets the requirements above and that it is accredited if you intend to use that degree towards an H1b and an employment-based green card. Next, article, we will discuss CPT and OPT Employment.

The L-1 visa for Intracompany Transferees

This article provides general information regarding the L-1 visa category. The L 1 visa category allows international companies with offices in the U.S. and abroad to temporarily transfer foreign national executives, managers, and those with “specialized knowledge” to the U.S. as “intracompany transferees.” Executives and managers may stay for a maximum of seven years; those with specialized knowledge may stay for up to five years.

The individual coming to the U.S. must have worked for the company abroad, or at a foreign subsidiary, branch, or affiliated company, for one continuous year in the preceding three years. In addition, the foreign company must continue to conduct business during the entire period of time the transferee is in the U.S.

A “subsidiary” relationship will be found if any of the following circumstances exist: (1) one company owns 50 percent or more of the other and controls the other company; (2) one company owns 50 percent or more of a 50/50 joint venture and has equal control and veto power; or (3) one company owns less than 50 percent of the other, but has actual control of it. An “affiliate” relationship exists if the two entities are owned and controlled by a third-party parent company, individual, or the same group of individuals (each of whom owns and controls the same proportion of each entity). A “branch” is an operating division or office of the same organization housed in a different location. When establishing a U.S. company, please ensure that the corporate attorney understands that one of the above-relationships must exist as these terms are defined by immigration regulations, and not by their generic meaning.

Employees who qualify for L-1 status include executives, managers, and individuals with “specialized knowledge” of the company’s operations. Each is described below.

“Executives” are persons whose duties primarily include: directing the management of the organization or a major component or function in the organization; establishing goals and policies; exercising wide latitude of discretionary decision-making authority; and receiving only general supervision from higher executives, the board of directors, or the stockholders.

“Managers” are those persons whose duties primarily relate to: managing the organization, or a department, component, or function of the organization; supervising and controlling the work of other professional, supervisory or managerial employees, or managing an essential function within the organization; exercising authority to hire and fire or recommend those actions, or functioning at a high level within the corporate hierarchy; and exercising discretion over day-to-day operations of the organization or function. Note that the definition of “manager” may include the management of essential functions within the organization or department of the organization, as opposed to solely the management of personnel.

Typically, the executive or manager must “be primarily engaged in a managerial (or executive) function,” and not in performing day-to-day administrative or operational activities that are not managerial or executive in nature. Please note that the government is permitted to consider the number of employees in the petitioning U.S. company, as well as the reasonable needs of the organization, in light of the overall purpose and stage of the development of the organization to determine if a position qualifies as a managerial or executive position, or if there is an actual need for the transferee.

“Specialized knowledge” refers to knowledge of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures. An individual in a position involving specialized knowledge may not be stationed primarily at the worksite of another employer if the individual will be controlled and supervised principally by the unaffiliated employer or the individual is placed there as part of an arrangement to provide labor for hire for the unaffiliated employer. It is important to note, however, that there are continuing concerns of perceived abuse of the L-1B category, such that USCIS adjudicators may gather information on the total number of L-1B petitions filed by a particular petitioner and may deny an individual L-1B petition after commenting on the volume of specialized workers.

If the beneficiary of the L-1 petition is an owner or major stockholder of the company, the petition must include evidence that the beneficiary’s services will be for a temporary period and the individual will transfer back abroad upon completion of the temporary stay. A statement to this effect should be made in the company’s letter in support of the petition.

New Office: Where the U.S. company will be a “start-up” entity or new office (operating for less than one year in the U.S.), the petition validity and duration of stay that initially will be granted to a transferee is only one year. There are different requirements for a new office L-1 petition that will be discussed in more detail in a later article.

Green Card: After the U.S. business has been operating for more than one year, it is possible to file a petition for permanent resident status for executives or managers who served in an executive or managerial position abroad. Where a company is a “start-up” or new office, we generally recommend that an L-1 extension first be approved, and thereafter a permanent residency petition filed.

As a general matter, the U.S. Citizenship and Immigration Services (“USCIS”) looks much more skeptically at cases filed by companies with a gross annual income of less than $10 million, 25 or fewer employees, and that are established within last 10 years, resulting in a significant increase in the requests for evidence on L-1 petitions, particularly in the “specialized knowledge” category.

Although requests for evidence have dramatically increased in this non immigrant category, there are many benefits to the L-1 non-immigrant classification. Unlike the H-1B non immigrant classification, there is no quota on the number of L-1s which may be issued every year, therefore an L-1 can be obtained any time of the year. Premium processing, in which the petition will be processed within 15 calendar days, is also available for this type of non-immigrant classification. In addition, L-1 does not require any specific educational background. L-1 is also considered a “dual intent” non immigrant classification, meaning that you may have an immigrant visa petition (green card) pending, and still have no problem in applying for L-1 extensions. Another advantage is that employers on a tight budget can also be assured that they are not required to pay the worker a specific prevailing wage.

After receiving approval of the L-1 petition, the transferee may take the approval notice to a U.S. Consulate or Embassy to obtain an L-1 visa to enter the U.S. Immediate family members (spouse and children under the age of 21) may obtain L-2 visas from the Consulate/Embassy at the same time, or anytime thereafter. After entering the U.S., the transferees spouse may then apply for work authorization for a period of up to two years, extendable in two-year increments.

Questions and Answers:

Q: May I change my work location when I’m in L-1 status?
A: Yes, your L-1 employer may move you to another work location as long as your duties remain the same and with the same employer. However, the employer must notify USCIS of the new worksite by filing an amended petition.

Q: Can an L-1 employee be placed at a third-party worksite by the L-1 employer?
A: Yes, but the L-1 employer must maintain supervision and control of the L-1 employee. The arrangement cannot be one to provide “labor-for-hire” for the unaffiliated employer. The L-1 employee should be providing a product or service involving specialized knowledge specific to the L-1 employer at the third-party worksite.

Q: If I am in the U.S. in L-1 status, may I change employers?
A: Yes, as long as the new prospective employer files an employment based non immigrant petition on your behalf, such as a H-1B petition. However, you cannot begin work for the new employer until the new non-immigrant petition and change of status is approved. Please keep in mind that the H-1B category is subject to an annual cap and the prospective employer may not be able to file a H-1B petition for you unless visas are still available in this category.

Q: Is there a prevailing wage requirement?
A: No, an employer does not have to pay an L-1 employee a prevailing wage like in H-1B cases; however, realistically, the wage paid to the L-1 employee needs to be considered reasonable when factoring in the structure and size of the individual company, the business practices of the market, and the wage paid to U.S. staff. The U.S. employer must conform to local, state, and federal Labor Laws.

Business or Pleasure? The “B” Visa category: A Look into Temporary Business Visitors to the U.S.

The “B” visa is a nonimmigrant visa for individuals visiting the United States temporarily for business or pleasure. This article focuses on the B-1 visa for business visitors and the acceptable business activities under this visa category. There is a lot of misunderstanding surrounding what constitutes acceptable business activities while using this visa; however, if you are found to be in violation of the terms of this visa, it can make future trips into the U.S. difficult and can harm your ability to obtain other nonimmigrant or immigrant visas in the future. Therefore, it is important to have some understanding on what is permissible while traveling on this visa.
Obtaining your visa:

Generally, a citizen of a foreign country who wishes to enter the United States must first obtain a visa, either a nonimmigrant visa (for temporary stay) or an immigrant visa (for permanent residence). The visa allows a foreign citizen, to travel to a U.S. port-of entry and request permission to enter the country from a U.S. immigration officer.

The Immigration and Nationality Act (INA) regulates the entry of aliens into the U.S. The INA creates a presumption (subject to certain exceptions) that any alien entering the U.S. intends to “immigrate” or remain in the U.S. permanently. Therefore, In order to receive a nonimmigrant visa, a foreign national must overcome this presumption. In doing so, it is helpful to provide evidence of the following:

• The visit is for business purposes and your principal place of business is abroad;
• The visit is temporary, for a specific, limited period;
• You have sufficient funds to cover expenses in the United States;
• You have a residence abroad where there are compelling social and economic ties to ensure you will return home at the end of the visit.

An application for a B-1 visa is most commonly submitted through a U.S. embassy or consulate having jurisdiction over your permanent residence abroad, although you may apply to any U.S. embassy or consulate abroad.

Allowable “Business” Activities in the U.S. while using this visa:

The definition of “business” in this instance is limited, and does not generally allow for gainful employment or productive activity such as operating a business or consultancy work. Under current regulations, B-1 visa visitors are not entitled to receive a salary from a U.S. employer. A salary paid by a foreign company for services rendered in the U.S. is permissible, as is a reasonable allowance for expenses and reimbursement by a U.S. company for expenses incidental to the visit. The Department of State advises that the following are among acceptable B-1 activities:

• Engaging in market research
• Negotiating contracts
• Looking into potential real estate sites for investment
• Signing property leases
• Consulting with business associates, such as board of directors meetings
• Supervising and training U.S. workers for building or construction work, although an alien may not actually perform such work
• Installing, servicing or repairing commercial or industrial equipment purchased from abroad, or training U.S. workers in their use and repair
• Participation in scientific, educational, professional or business conventions, conferences, or seminars
• Commercial transactions in the U.S., such as a merchant taking orders for goods manufactured abroad
• Undertaking independent research.
• Litigation related activities

Acceptable Activities:

Under a visitor for business visa, an individual may attend meetings and enter into discussions with current and potential clients regarding specifications on deals and contracts, plan goals, discuss progress in achieving goals; take orders; engage in commercial transactions; negotiate contracts; look into potential real estate sites for investment; sign leases on property.

Requirements/Limitation of Activities:

The above activities are acceptable but a few requirements must be met. The principal place of business must be abroad; if orders are taken- they must be sent abroad to fill; profits must be accrued to the foreign company abroad and not to the visitor directly in the U.S.; the activities must serve to further the interest of the foreign employer; there can be no remuneration for the US activities from the US – all compensation to the visitor should come from the foreign company abroad.
The B-1 visa does not allow local employment or labor for hire, which generally means that no hands-on work should be performed (limited exception to be discussed below under “B1 in lieu of H-1”).
Generally, the activities in the US should be incidental to the work that is principally performed outside of the US. The US activity should be a fraction of the normal work duties of the visitor in their home country.

NAFTA

Under the terms of the North American Free Trade Agreement (NAFTA) among the U.S., Canada and Mexico, business visitors from these countries have more relaxed rules regarding allowable activities in the U.S. under a B-1 visa. An appendix to NAFTA (Appendix 1603.A.1) lists such allowable activities.
If you are interested in more information on permissible activities under the B1 visitor visa, or would like to know other immigration options available to you, please feel free to contact our office.

The Visa Waiver Program

Citizens of certain countries are allowed to enter the United States without a B1/B2 visa under the Visa Waiver Program, as long as the purpose of the US visit is to engage in permissible activities normally under the B1/B2 visa. Under this program, each individual must enroll in ESTA and complete the online form prior to travel. The visitor must also possess a round-trip ticket, with few exceptions. ESTA will inform the applicant if they are VWP eligible. However, the ultimate decision on admission into the United States is at the sole discretion of the Customs and Border Patrol officer at the port of entry. So even if the ESTA program informs an individual they are eligible, the ultimate admission into the US can be denied.
Since ESTA will tell the applicant if he/she is eligible for VWP, it is recommended to apply early in case there is a problem and a visa must be applied for.
Upon entry “WB” is annotated on the individual’s admission stamp for individuals visiting for business. Entry is generally granted for 90 days.
If you are traveling back and forth very regularly for employment related activities, it is recommended to file for a formal B-1 visa for several reasons: 1) 90 days may not be enough time for your business activity 2) repeated entries under the VWP may result in higher scrutiny at the port of entry causing delays and inconvenience to the traveler. The officer at the port of entry may also deem you, erroneously, ineligible for entry due to fear you have participated or will participate in unauthorized employment, and send you back causing difficulty on following entries.

B-1 in lieu of H-1B:

A person may travel on a B-1 visa and actually perform work for a short duration (generally up to 6 months) in lieu of a H-1B visa, if they: are regularly employed by a foreign firm; there will be no salary or remuneration from a US source during their stay; the foreign firm has an office abroad and disperses a payroll abroad; the foreign firm has been paying the individual’s salary and will continue to do so; the individual has a Bachelor’s degree (or equivalent of a 4 year university degree) in a related field to the occupation, and such a degree is required in order to perform the professional activities in the US.
Although it is permissible to do this on the VWP, it is advisable to obtain the official B-1 visa with the specific annotation “B1 in lieu of H1” from a U.S. Embassy or Consulate. Obtaining a B-1 visa would protect you and avoid potential problems with a traveler’s US immigration history. For example, if an Immigration Officer presumes you have engaged in unauthorized employment in the past and denies your entry in the US – you will have to disclose that on later applications for visas, which could cause difficulty in obtiainging a visa in the future. Furthermore, with a legitimate B-1 visa is in your passport, the officer at the U.S. port of entry knows you have already gone through a level of scrutiny at the US Embassy/Consulate abraod, and a government official has deemed your activities legitimate. This may give them piece of mind when dealing with your application for admission, which will in turn make your life easier!

By: Attorney Momal Iqbal