There are cases in which aliens who qualify for H1 or H3 visas may more appropriately be classified as B-1 visa applicants in certain circumstances; e.g., a qualified H1 or H3 visa applicant coming to the United States to perform H1 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. It is essential that the remuneration or source of income for services performed in the United States continue to be provided by the business entity located abroad, and that the alien meets the following criteria:
- With regard to foreign-sourced remuneration for services performed by aliens admitted under the provisions of INA 101(a)(15)(B), the Department has maintained that where a U.S. business enterprise or entity has a separate business enterprise abroad, the salary paid by such foreign entity should 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; and
- An alien classifiable H-2 must be classified as such notwithstanding the fact that the salary or other remuneration is being paid by a source outside the United States, or the fact that the alien is working without compensation (other than a voluntary service worker classifiable B-1 For participating in a voluntary service program a religious or nonprofit charitable organization). A nonimmigrant visa petition accompanied by an approved labor certification must be filed on behalf of the alien.
B-1 visas issued in accordance with the guidance in this section must be annotated as such. The annotation should read:
B-1 IN LIEU OF H, PER 9 FAM 402.2-5(F)