I actually already posted this in the "Entering on B Visa" section, but then realized it is the wrong section for this. Sorry for cross posting; I haven't found out how to delete the original post unfortunately. Thanks in advance!
Our (small) Internet startup has been employing a software engineer in China. We don't have a subsidiary in China, but have been paying him directly. We would like to bring him over to the US for a few weeks for some important team meetings as well as some software work. It seems to me that the B1 visa is appropriate? In particular, I found the below section in the Foreign Affairs Manual for Visas. However, my concern is that it seems to require our employee to have been paid by an entity in China all along, although frankly the wording confuses me. Your help is greatly appreciated. Thank you!
9 FAM 41.31 N11 ALIENS NORMALLY
CLASSIFIABLE H-1 OR H-3
(CT:VISA-1034; 09-24-2008)
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. For purposes of this Note,
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:
(1) 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 shall not be considered as coming from a
“U.S. source;”
(2) 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 U.S. Department of State Foreign Affairs Manual Volume 9 - Visas
9 FAM 41.31 Notes Page 20 of 32
employee’s salary, and the source of the employee’s salary must be
abroad; and
(3) An alien classifiable H-2 shall 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 in accordance with 9 FAM 41.31 N9.1-5). A
nonimmigrant visa petition accompanied by an approved labor
certification must be filed on behalf of the alien.
Our (small) Internet startup has been employing a software engineer in China. We don't have a subsidiary in China, but have been paying him directly. We would like to bring him over to the US for a few weeks for some important team meetings as well as some software work. It seems to me that the B1 visa is appropriate? In particular, I found the below section in the Foreign Affairs Manual for Visas. However, my concern is that it seems to require our employee to have been paid by an entity in China all along, although frankly the wording confuses me. Your help is greatly appreciated. Thank you!
9 FAM 41.31 N11 ALIENS NORMALLY
CLASSIFIABLE H-1 OR H-3
(CT:VISA-1034; 09-24-2008)
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. For purposes of this Note,
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:
(1) 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 shall not be considered as coming from a
“U.S. source;”
(2) 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 U.S. Department of State Foreign Affairs Manual Volume 9 - Visas
9 FAM 41.31 Notes Page 20 of 32
employee’s salary, and the source of the employee’s salary must be
abroad; and
(3) An alien classifiable H-2 shall 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 in accordance with 9 FAM 41.31 N9.1-5). A
nonimmigrant visa petition accompanied by an approved labor
certification must be filed on behalf of the alien.