The H-3 trainee, J-1 exchange visitor/trainee, B-1 business visitor and the Visa Waiver Pilot Program (VWPP) classifications are very useful for employing or training foreign nationals in the following instances:

• The U.S. employer has or can develop a training program to train foreign nationals;
• The foreign national does not have a bachelor's degree or equivalent and the employer has or can develop a training program;
• The position offered to the foreign national does not require a bachelor's degree or equivalent and the employer has or can develop a training program;
• The foreign national is working for an overseas office or affiliate of the U.S. employer, requires training in the U.S. and cannot otherwise qualify for L-1 status; or
• The foreign national is a friend or child of someone connected with the U.S. employer, wants to get exposure to U.S. business/culture and cannot qualify for any other classification (e.g. H-1B).

The best option (H-3, J-1, B-1 or VWPP) depends upon the employer's specific needs, the position offered, the employer's nexus with another country and the foreign national's qualifications. Tax implications (less U.S. tax liability for J-1 trainees and B-1 visitors) are also important considerations. See Trainee Option Flowchart.

H-3 TRAINEES

H-3 status is for foreign trainees who are seeking entry into the U.S. at the invitation of a U.S. employer (corporation or individual) for the purpose of receiving training. The H-3 trainee typically is coming to the U.S. to receive industrial or professional training that will assist him or her in pursuing a career outside the U.S. In many instances, a multinational corporation with an established corporate-wide training program can utilize the H-3 classification to bring groups of foreign employees to the U.S. facility for training if such training is not available elsewhere.

The H-3 classification is not available to foreign physicians. Also, the H-3 training program cannot be used to employ trainees in "productive" U.S. employment. In other words, the training must be actual training with only incidental employment.

Because the INS sometimes takes up to a couple of months to adjudicate an H-3 petition, some employers may be better served pursuing what is referred to as "B-1 in lieu of an H-3" status. The B-1 status may be used in the alternative and can often be obtained more expeditiously at the embassy or consulate.

Qualifying Requirements

To qualify for H-3 status, the petitioning employer is required to show that:

1. The training is not available in the alien's home country;
2. The training is not designed to recruit/train aliens for eventual U.S. staffing;
3. The trainee will not engage in productive employment unless incidental or necessary; and
4. The training will assist the trainee in pursuing a career outside the U.S.

Traits of an Approvable Training Program

Explicit description of the type of training and supervision the employer will provide including the specific subject matter of the training and the training program's fixed schedule and objectives:

• Detailed program structure, akin to a course curriculum, showing the time to be spent in classroom;
• Full explanation of the proportion of time to be spent in "productive" employment as opposed to classroom instruction and/or "on-the-job" training;
• Discusses the alien's proposed career abroad and how training will assist him or her;
• Explains why such training is not available in alien's home country;
• Explains the source of any remuneration the alien may receive and the benefits that may accrue to the employer as a result of providing the training.

Duration or Length of Stay

• Total initial validity period of up to 2 years.
• Extensions are difficult to obtain because the employer must explain why the initial period of stay was insufficient, although extensions may ostensibly be obtained in some instances.

Application Procedure

The H-3 process is a one-step process (sometimes two-step process). The employer files the Form I-129 petition with the U.S. Immigration and Naturalization Service. H-3 petitions generally take 90 days to process with the INS Service Center. However, the employer may pay an additional $1,000 Premium Processing fee to obtain a more expedited decision (generally two weeks).

When the INS approves the H-3 petition, it will cable the approval notice to the designated U.S. Embassy or Consulate. At the U.S. Embassy or Consulate, the H-3 trainee will then apply for the H-3 visa stamp to enter the United States as an H-3 trainee.

Spouse and Children of H-3 Trainees

The spouse and unmarried minor children of the H-3 trainees may reside temporarily in the U.S. in H-4 derivative status. However, U.S. Embassies and Consulates may be reluctant to issue the H-3 trainee visa if the trainee cannot show strong ties to the home country. Attempting to bring dependents on H-4 status may affect the ability to show strong ties. Although the H-4 status does not authorize the spouse and children for U.S. employment, they may be able to change to H-1B or some other work-authorizing status if they meet the qualifying requirements. Also, the derivative spouse and children may attend accredited schools and universities in H-4 status.

J-1 TRAINEES/EXCHANGE VISITORS

J-1 visa classification is used by foreign students, scholars, medical interns, international visitors, and industrial/business trainees to enter the United States as "exchange visitors" to participate in U.S. government approved Exchange Visitor Programs. The U.S. Department of State oversees the administration of Exchange Visitor Programs.

U.S. employers may employ trainees in J-1 status through their own approved programs or through established umbrella programs. Depending upon the J-1 category, the trainee may be employed for 12 to 24 months, but the duration is usually 18 months. Employers may be able to qualify as J-1 sponsors if they have a legitimate training program that offers an opportunity for cultural exchange. Although the State Department has increased its scrutiny of J-1 sponsor applications in the past years, J-1 programs are on the rise.

Historical Background

To better understand the J-1 visa classification and the overall objective of the program one must look at the historical background and the Congressional intent in its establishment. Congress created the J visa category as part of the Information and Educational Exchange Act of 1948. This act was later amended by the Mutual Educational and Cultural Exchange Act (Fulbright Hays Act) of 1961. These Acts were designed to improve and develop international relations by providing research, education and training to foreign nationals who would then return to their respective countries to employ those useful skills. This legislation authorized and fostered the creation of the "Exchange Visitor Program," previously administered by the U.S. Information Agency's ("USIA") Bureau of Educational and Cultural Affairs.

The administration of this program was shifted from the USIA to the U.S. State Department effective October 1, 1999. The State Department's Undersecretary of State for Public Diplomacy and Public Affairs delegated all authority to administer all functions of the J-1 Exchange Visitor Program to the State Department's Assistant Secretary for Education and Cultural Affairs.

Because one of the policy goals furthered by the Foreign Visitor Exchange Program is to provide training and experience to foreign nationals who will then return to their home countries to employ those skills, Congress imposed a two year foreign residency requirement for some J-1 candidates.

Management Trainees

This category is very similar to the L-1B and H-1B skilled worker category, but lasts only 18 months. The purpose of this J-1 category to provide foreign trainees the opportunity to observe American institutions and methods of practice, and learn management skills in their particular field or industry and to learn U.S. culture from their American colleagues.

One main difference between J-1 and H-1B or L-1B visas is that the J-1 is for the purpose of exchange and requires temporary intent while the H-1B or L-1B is for the purpose of employment and permits dual or future permanent intent. The J-1 management trainee visa is a good option when the foreign national does not have a bachelor's degree or its equivalent. Otherwise, the 6-year H-1B would be a superior status.

A J-1 management trainee is usually an individual who has some experience or education in a field of specialized field. The hospitality and restaurant industries use J-1 visas to employ managers. J-1 visa classification is also used by large multinational corporations seeking to train future managers who otherwise do not qualify for H-1B status (foreign national does not have degree equivalent) or L-1 status (foreign national has not worked for overseas affiliate/subsidiary/parent for qualifying 6 months or 1 year).

Industrial Trainees

This training category of exchange visitors is the most highly scrutinized because of employers' potential inappropriate use of this category to fill vacant positions. Training sponsors must certify that their training programs are not designed to recruit and train aliens for employment in the United States and that the trainees will not be placed in positions that displace full time or part time employees.

Appropriate training must be "on the job" training that is defined as an individual's observation of and participation in given tasks demonstrated by experienced workers for the purpose of acquiring competency in such tasks. 

Specialists Trainees

This category is very similar to the L-1B and H-1B skilled worker category, but lasts only one year. The purpose of the specialist category is to provide foreign specialists the opportunity to observe American institutions and methods of practice, and to share their specialized knowledge with their American colleagues.

A J-1 specialist must be an individual who is an expert in a field of specialized knowledge or skill coming to the United States for observing, consulting, or demonstrating special skills.

The difference between J-1 and H-1B or L-1B visas is that the J-1 is for the purpose of exchange and requires temporary intent while the H-1B or L-1B is for the purpose of employment and permits dual or future permanent intent.

Summer Trainees

An employer may train foreign college/university students in J-1 status during the U.S. summer months for up to 90 days.

The difference between J-1 and H-2B season visa is that the J-1 is for the purpose of exchange and requires the J-1 trainee to engage in training while the H-2B is for the purpose of seasonal employment (e.g. labor or gainful employment) and requires the employer to pay the prevailing wages.

No Wage Requirements

Unlike the H-1B or H 2B status, an employer is not required to offer the prevailing wage to a J-1 trainee. In addition, the J-1 status is administered by the State Department; thus, no union notification is required.

An exchange visitor participant in a J-1 program may receive compensation from the J-1 program sponsor or from the sponsor's appropriate designee for employment when such activities are part of the exchange visitor's program. An exchange visitor who engages in unauthorized employment (any employment other than that employment which is specifically authorized as a part of the J-1 program in which the exchange visitor is enrolled) shall be deemed to be in violation of his or her program status and subject to termination as a participant in an exchange visitor program. The INS would also deem this unauthorized employment to be a violation of nonimmigrant status, subjecting the exchange visitor to removal from the United States.

From a tax standpoint, program sponsors are required to withhold taxes from income paid to exchange visitors. However, wages paid to exchange visitors are exempt from paying taxes under FICA, FUTA, and the Railroad Retirement Act.

In House Program vs. Umbrella Program

Organizations without Exchange Visitor designations may apply to qualify J-1 exchange visitors through an umbrella sponsoring organization provided that they meet the requirements of that organization. One of the largest international sponsoring organizations is the YMCA.

Umbrella programs charge a fee to sponsor the exchange visitor (generally $600 $1200 per person). For large numbers of trainees, most corporations usually seek to cut down costs and opt to apply for J-1 sponsor status (as opposed to using an umbrella program). In addition, corporations with in house programs can issue their own J-1 documents (Form IAP-66) in lieu of seeking the umbrella program's approval.

Each umbrella program sponsor has different eligibility and/or reporting requirements. Each program requires initial proof of the nature of the training program and the candidate's qualifications. Additionally, each requires reports on the progress and status of each J-1 candidate's program. The umbrella program sponsor then follows strict reporting requirements to convey this information to the DOS.

Qualifying For In-House Program Designation

Applications for designation as a J-1 program sponsor are made on Form IAP-37 ("Exchange Visitor Program Application"), and are filed with the U.S. Department of State's Program Designation Division in Washington, D.C.

The application, signed by the chief executive officer of the applicant, should set forth, in detail, the applicant's proposed exchange program activity, and shall demonstrate the applicant's ability to (currently and prospectively) comply with Exchange Visitor Program regulations. While the State Department can request any additional information deemed necessary to evaluate and adjudicate an IAP-37 application, the applications should provide at least the following information and documentation:

• Evidence of legal status as a corporation, partnership, or other legal entity (e.g., charter, proof of incorporation, partnership agreement, as applicable) and current certificate of good standing;
• Evidence of financial responsibility (current and prospective), showing capability to meet at all times the sponsor's financial obligations and responsibilities appropriate for successful J-1 program sponsorship. This may involve demonstrating and documenting the ready availability and control of funds, presentation of tax and accounting records and reports, presentation of audited financial statements, and copies of regular reports to governmental or regulatory agencies. The State Department may even require the applicant to secure a performance/payment bond in favor of the USIA, guaranteeing all financial obligations arising from the sponsorship of exchange visitors;
• Evidence of accreditation if the applicant is a post secondary educational institution;
• Evidence of licensure, if required by local, state, or federal law, to carry out the activity for which it is designated;
• Certification by the applicant that the applicant and its "responsible officer" and "alternate responsible officers" are citizens of the United States; and
• Certification signed by the chief executive officer of the applicant that the "responsible officer" will have sufficient staff and resources to fulfill his/her duties and obligations on behalf of the applicant sponsor.

J-1 Sponsorship Approval/Duration of Program

If the State Department approves the Form IAP-37 application and designates the employer applicant as a J-1 program sponsor, the State Department will issue a written designation valid for up to five (5) years, and the J-1 program sponsor could then engage in the J-1 program sponsorship activities (for 5 years) that are specifically authorized in the written designation. The sponsor can then issue Form IAP-66 Certificates of Eligibility to foreign nationals selected to participate in its J-1 exchange visitor program.

Upon expiration of a given designation term (5 years), the J-1 program sponsor may seek re designation for another five year term. J-1 program sponsors must file an annual report with the DOS. To apply for re designation as a J-1 program sponsor, the sponsor should advise the office of Exchange Visitor Program Services by letter, or should indicate a request for re designation in the sponsor's annual report. The request for re designation should be made no less than four months prior to the expiration of the existing designation. If the sponsor has filed a timely request for re designation, the sponsor may continue to operate its J-1 program(s) until such time as the DOS notifies the sponsor of a decision to amend or terminate the sponsor's designation. The DOS will consider the J-1 program sponsor's original Form IAP-37 and the performance of the J-1 sponsor in determining whether to grant a request for re designation.

Minimum Program Requirements

J-1 program sponsors must sponsor no less than five exchange visitors per calendar year.

The program must be a bona fide educational and cultural exchange program, and the applicant should clearly define the specific purposes and objectives of the program. The program must provide cross cultural activities for the exchange visitor.

The program must offer or make available cross cultural activities for the exchange visitor. The extent and types of the cross cultural activities should be determined by the needs and interests of the program and the J-1 visitor participants. Sponsors are encouraged to provide their exchange visitor participants with the broadest exposure to American society, culture and institutions; and to encourage the J-1 program participants to share the language, culture and history of their home country with Americans.

The program must be reciprocal whenever possible (e.g. send U.S. visitors abroad), though there is not any quota or "one for one" exchange requirement. The nature and extent of reciprocity achieved is one of the factors that must be included in the sponsor's annual report to the DOS.

Applicants must provide information regarding the sponsoring organization's legal status, citizenship, accreditation, and licensure.

Corporate applicants must show that they are financially stable and that they will be able to fulfill all of their financial duties related to the exchange visitor program, including the ability to provide return trip airfare for exchange visitors to their home countries. An audited financial report by a certified public accountant is an example of a good method of demonstrating this financial stability.

Applicants must assure that the purpose of the program is not to fill staff vacancies and that the program will not adversely affect the US labor market.

Applicants must assure that every exchange visitor will be adequately covered with insurance while participating in the exchange program. This insurance must provide coverage of $50,000 per accident or illness, coverage for repatriation of remains of $7,500, and coverage for medical evacuation of the visitor to his or her home country of $10,000. In addition, applicants should provide full details regarding the selection, placement, orientation, evaluation, and supervision of the exchange visitors. If other organizations are involved, either in the United States or overseas, with the selection, placement or orientation, full details should be given about them.

An exchange visitor participant in a J-1 program may receive compensation from the J-1 program sponsor or from the sponsor's appropriate designee for employment when such activities are part of the exchange visitor's program. An exchange visitor who engages in unauthorized employment (any employment other than that employment which is specifically authorized as a part of the J-1 program in which the exchange visitor is enrolled) shall be deemed to be in violation of his or her program status and subject to termination as a participant in an exchange visitor program.

Administering In-House Program

After the State Department approves the designation of an IAP-37 applicant as a J-1 program sponsor, the State Department sends the approved sponsor a package of materials, brochures, regulations, IAP-66 forms, an Exchange Visitor Program Codebook, and an Exchange Visitor Program Responsible Officer Manual.

Sponsors must adhere to all applicable J-1 regulations, and they must always maintain their legal status and financial responsibility as set forth in their application for designation. Sponsors must always be careful to provide only accurate and complete information to the public when advertising their program, clearly explaining all costs, conditions, activities, and restrictions. The J-1 program numbers may not be used in advertising or publications intended for general circulation.

Sponsors must immediately notify the DOS of any changes in address, telephone number, facsimile number, ownership, control, financial circumstances (which may adversely affect the ability to fulfill sponsorship obligations), licensure, accreditation, or any changes in entity composition or structure that may affect the sponsor's American citizenship. J-1 program sponsors must also promptly notify the DOS if they become aware of (or are named as a party in) any litigation related to the sponsor's exchange visitor program, or if they are advised of any serious problem, controversy or issue involving their program which could be expected to bring notoriety or disrepute to the DOS or to the J-1 exchange program. A J-1 sponsor must also notify the DOS in writing when any exchange visitor has withdrawn from or been expelled from his or her program, and also provide written notification to the DOS at least 30 days prior to the completion of a J-1 program by an exchange visitor.

Sponsors must always maintain and ensure adequate staffing and support services to administer their exchange visitor programs, and make sure that all staff, supervisors, and administrators of the program are adequately qualified, trained, and have knowledge of and a willingness to adhere to Exchange Visitor Program regulations. The sponsor must also appoint and designate a "responsible officer" and such "alternate responsible officers" as may be necessary to administer the J-1 progarm and carry out the duties of a responsible officer as set forth in the regulations. The DOS may limit the number of alternative responsible officers appointed by a J-1 program sponsor. Generally, the responsible officer must be an employee or officer of the sponsor, though the DOS may authorize the appointment of a non employee individual (the immigration attorney) as an alternate responsible officer.

Program Administration

J-1 program sponsors are responsible for the effective administration of their J-1 exchange visitor programs. These responsibilities include:

1. Providing a system to screen and select prospective eligible exchange visitors, ensuring that the program is suitable to the exchange visitor's background, needs, experience, and level of English language proficiency;
2. Provide exchange visitors with pre arrival information and materials including, but not limited to, information on:

   • The Purpose of the Exchange Visitor Program;
   • Any applicable home country physical presence requirements;
   • Travel and entry into the United States;
   • Housing/Transportation in the United States;
   • Any applicable fees payable to the sponsor;
   • Other costs that the exchange visitor will likely incur (e.g. living expenses);
   • Health care and insurance requirements and/or provisions;
   • Other information which will assist exchange visitors to prepare for their stay in the United States;

3. Provide appropriate orientation (information on life, customs, health care, insurance, transportation, schools, libraries, recreation, banks, etc.) to exchange visitors and their immediate families, particularly those exchange visitors who are expected to be participating in J-1 programs lasting more than one year. The sponsors must also provide exchange visitors with the name, address and telephone number of the sponsor's responsible officer and the address and telephone number of the DOS Exchange Visitor Program Services Office and a copy of the Exchange Visitor Program brochure outlining the regulations relevant to the exchange visitors;
4. J-1 program sponsors shall ensure that only the responsible officer or alternate responsible officers issue (sign) Forms IAP-66 Certificates of Eligibility;
5. Monitor the exchange visitors participation in the J-1 program, ensuring that the activities of the exchange visitor are consistent with the program and activities listed on the exchange visitor's Form IAP-66; that the exchange visitor progress in the program is sufficient to complete the program within the time limits of the program; and that the exchange visitor keeps the sponsor advised of his/her residence address and telephone number (and any changes of same);
6. The sponsor shall, to the extent permitted by law, retain and provide the DOS with requested information, reports, documents, files, and other records requested by the DOS on matters related to the sponsor's J-1 program;
7. Sponsors are required to cooperate with the DOS in any DOS inquiries or investigations;
8. Sponsors are required to retain records related to their J-1 programs and the J-1 exchange visitor participants for a minimum of three years.

Duties of Responsible Officers

Responsible officers are responsible for the training of alternate responsible officers. Together they are responsible for acquiring a thorough and comprehensive knowledge of all laws, regulations, Program Codebook, and the Instructions for Responsible Officers pertaining to the J-1 Exchange Visitor Program.

They are responsible for providing the exchange visitor program participants with appropriate and sufficient advice, orientation, assistance, and monitoring that will facilitate the exchange visitors successful completion of the J-1 program.

They are also responsible for conducting all official communications with the various governmental regulatory agencies (INS, DOS). Any communications with the INS or DOS should contain and refer to the J-1 program's official program number.

The Form IAP-66 Certificate of Eligibility is a "controlled form", meaning that each form bears a control number, and the forms must be carefully safeguarded and accounted for; another responsibility of the responsible officer and the alternate responsible officers. These forms are issued to J-1 program sponsors upon approval of the sponsor's application for designation as a sponsor. The DOS provides a number of forms based on an estimate of annual usage by the program. If more forms are needed, the sponsors must account for the forms used in requesting additional forms.

The forms are used to facilitate the entry of new J-1 exchange visitors to the United States, to extend the stay of a J-1 visitor, to facilitate a program transfer of a J-1 visitor, to facilitate the entry of an exchange visitor's dependent spouse and minor unmarried children to join the J-1 visitor in the United States, to facilitate the travel (in and out of the U.S.) of a J-1 exchange visitor during the J-1 program, to note changes and up date information concerning a J-1 program (such as changes in funding or in location where the program will take place), and to facilitate a change of category (as permitted by the State Department).

Responsible officers may extend an exchange visitor's participation in the Exchange Visitor Program up to the limit of the permissible period of participation authorized for his or her specific program category. A responsible officer extending the program of an exchange visitor shall issue to the exchange visitor a duly executed Form IAP-66 reflecting such extension and provide a notification copy of such form to the DOS.

Annual Reports

J-1 exchange visitor program sponsors must submit annual reports to the State Department (on an academic year basis for educational institutions, or on a calendar year basis for most other entities). These reports shall provide information concerning the following:

1. Program report and evaluation A brief summary of the activities in which exchange visitors were engaged, including an evaluation of program effectiveness;
2. Reciprocity A description of the nature and extent of reciprocity occurring in the sponsor's exchange visitor program during the reporting year;
3. Cross cultural activities A summary of the cross cultural activities provided for the sponsor's exchange visitor participants during the reporting year;
4. Proof of insurance Certification of compliance with the insurance requirements set forth in applicable regulations;
5. Form IAP-66 usage A report of Form IAP-66 usage during the reporting year setting forth

   1. the total number of blank Forms IAP-66 received from the DOS during the reporting year;
   2. the total number of Forms IAP-66 voided or destroyed by the sponsor during the reporting year and the document control numbers of such forms;
   3. the total number of Forms IAP-66 issued to potential exchange visitors that were returned to the sponsor or not used for entry into the United States; and
   4. the total number and document identification/control number sequence of all blank Forms IAP-66 in the possession of the sponsor on the date of the report; and

6. Program participation A numerical count, by category, of all exchange visitors participating in the sponsor's program for the reporting year.

Suspension and Revocation of Designation

The Department of State and INS closely monitor exchange visitor programs. Abuse of J-1 programs, including improperly filling staff vacancies, is dealt with severely. Any improper use subjects meritorious Exchange Visitor Programs to unwarranted scrutiny and restrictions. The Department of State will suspend or revoke exchange visitor designation for willful or negligent violations of regulations, patterns of willful or negligent failure to comply with regulations or other misconduct.

Two Year Home Country Physical Presence Requirement

The stated purpose of the Exchange Visitor Program is to facilitate and promote an international exchange of cultures, knowledge and skills. Exchange visitor participants in J-1 programs are expected to return to their home countries and to apply and transmit to their countrymen the skills and knowledge and understanding of U.S. customs that they acquired while in the United States. The Program is not to be used to facilitate or initiate the process of acquiring permanent residence in the United States. In furtherance of this objective, many J-1 exchange visitor programs incorporate a requirement that the J-1 program participant return to his or her home country for a period of two years before the person could be eligible to apply for/receive an immigrant visa or be issued "H" nonimmigrant temporary worker status or "L" intracompany transferee nonimmigrant status. The INS and DOS regulations provide for waivers of this requirement in some instances.

Applying for J-1 Visa at Embassy/Consulate

The designated program sponsor issues Form IAP-66 to the qualifying exchange visitor/trainee. Each exchange visitor/trainee must meet the program sponsor's eligibility requirements (e.g. 1 year of experience in the hospitality industry). This form describes the specific J-1 candidate's program requirements as well as the length of stay. Both the sponsoring organization and exchange visitor must complete the Form IAP-66.

The exchange visitor presents completed Form IAP-66 and a Form DS-156 application to the U.S. Consulate that issues the passport visa stamp. Male applicants between ages 18 and 45 must also submit a Form DS-157. The exchange visitor must then submit both the J-1 visa issued by the U.S. Consulate abroad as well as the IAP-66 to the INS Officer at the Port of Entry (border or airport). The exchange visitor should retain the pink copy of Form IAP-66 because it is necessary for brief absences from the United States and for extending the visa.

J-2 Spouses Can Work

The spouse and unmarried minor children of the J-1 trainee may reside temporarily in the U.S. in J-2 derivative status. Unlike some other derivative classifications (e.g. H-4 and F-2), J-2 status in most instances will allow the spouse and children to be eligible for employment in the United States. Thus, J-1 status is often more desirable than other temporary status because the accompanying spouse and children can be authorized for U.S. employment. The J-2 dependant must file Form I-765 with the INS to obtain the blanket employment authorization card.

B-1 BUSINESS VISITORS/TRAINEES

B-1 Business Visitor classification is probably the most useful of all temporary visa classifications. Business visitors may be admitted for the purpose of engaging in business but not for gainful U.S. employment. The term "business" encompasses many legitimate commercial and professional activities but specifically does not include local employment or labor for hire. One of the permitted B-1 activities is "training"-this category is often referred to as a "B-1 in lieu of H-3". In many ways, the B-1 is like a short-term H-3.

U.S. Consulates and Embassies issue B-1 visas. The Department of State's Foreign Affairs Manual (FAM) is a primary source for determining B-1 eligible activities.

In any event, the B-1 business visitor must continued to be paid from an overseas source, the proposed business activities must be international in scope, and business visitor must not be seeking to enter the local U.S. labor market.

Duration of Stay

• Not more than 1 year initially (usually 6 months)
• May obtain extensions of 6 months or less

Extensions are difficult to obtain because the employer must explain why the initial period of stay was insufficient, although extensions may ostensibly be obtained in some instances.

Procedure

B-1 visas are issued by the U.S. Consulates and Embassies. The application form for the B-1 visa is Form DS-156 (and the additional DS-157 for male applicants). The cost for obtaining the B-1 visa is $45.00 plus any reciprocity fees. Often, the B-1 business visitor applicant will be required to present a company support letter explaining his or her reasons for seeking B-1 classification. No prior INS or DOL petition is required.

The expediency of obtaining the B-1 is why it is a desirable status. However, it is often a difficult visa to obtain (see below).

Factors in Determining Entitlement to B-1 Visitor Classification

In determining whether an alien is entitled to B-1 Visitor Classification, consular officers look at the following factors:

1. Whether applicant has residence in a foreign country and does not intend to abandon it.
2. Whether applicant intends to enter the U.S. for a period of limited duration.
3. Whether applicant intends to enter for the sole purpose of engaging in the prescribed and legitimate activities of business or pleasure.
4. Whether the foreign national's home country participates in the Visa Waiver Pilot Program (VWPP)---the U.S. Embassies and Consulates in VWPP countries do not like to issue B-1 or B-2 visas and encourage foreign nationals to apply for VWPP status.

The consular officer will look to see if the applicant has adequate funds to avoid unlawful employment. In addition, the officer will also consider the applicant's ties to the home country and the likelihood of the applicant's return to the home country at the end of the proposed stay.

The B-1 visa option is probably not a viable one for some companies. The attractiveness of the B-1 option is that it does not require any prior approval from the U.S. Department of Labor or the INS. The B-1 applicant simply appears at the U.S. Embassy or Consulate abroad together with a letter from the company explaining the proposed entry and then applies for the B-1 visa stamp.

A foreign worker may enter as a "B-1 in lieu of H-3," meaning that the foreign national could enter the U.S. for six months as a B-1 business visitor and yet perform H-3 visa duties (employment incidental to the training). In essence, this category is merely a six-month H-3 trainee visa. The up side to this option is that there is no INS processing time and the U.S. Embassy has sole discretion to issue or deny the B-1 visa.