VISAS
The type of visa that an employee or
independent contractor holds determines the
types of payment remuneration that an
individual may receive. Certain visas are
not eligible to receive any type of
payments.
A. Immigration Visas
The U.S. Department of State is responsible
for the issuance of U.S. passports and
immigrant visas to the United States.
Immigrant visas usually are obtained where a
relative of the prospective immigrant or a
U.S. employer wishing to provide work for
the alien files a petition with the
Immigration and Naturalization Service.
Individuals entering the United States with
an immigrant visa are issued a
photo-identification card, commonly known as
the "green card."Green cards containing the
notation "I-151"in the lower left-hand back
corner are being replaced with an I-551 card
containing the bearer's photo, fingerprint,
and signature. As of March 20, 1996 the old
I-151 green card no longer constitutes valid
proof of immigrant status. Lawful permanent
resident aliens may obtain an application
for a new I-551 card by calling
1-800-755-0777.
Foreign nationals holding green cards --
those foreign nationals admitted under
immigrant visas -- are classified as
resident aliens for U.S. taxation purposes.
However, it is not necessarily true that
foreign nationals admitted under
nonimmigrant visas are nonresident aliens
for tax purposes. Nonimmigrants will be
considered resident aliens if they satisfy
the "substantial presence test"( See
Determination of Tax Status).
B. Non-Immigration Visas
Non-immigration visas are issued to foreign
nationals seeking to enter the United States
for a specific purpose that can be
accomplished during a temporary period. The
various types of non-immigrant visas are
denoted by letters and are sometimes
referred to as "temporary visas"since they
generally are issued for finite periods,
although some are renewable. A non-immigrant
visa authorizes foreign nationals to proceed
to the United States, where if admitted,
they are issued a Form I-94 indicating the
length of the period they are authorized to
remain in the United States.
C. Non-Immigration Visa
Types
A-1, A-2, and A-3 visaholders are
foreign government officials. They are
aliens coming temporarily to the United
States who has been accredited by a foreign
government to function as an ambassador,
public minister, career diplomatic or
consular officer, other accredited official,
or an attendant, servant or personal
employee of an accredited official, and all
above aliens' spouses and unmarried minor
(or dependent) children.
A-1 and A-2 visaholders are only
authorized to work for the foreign
government which accredited them. A-1 and
A-2 immediate family members may obtain
work authorization in the form of a fully
executed Form I-566, endorsed by the
Department of State. A-3 visas are
only authorized to work for the A-1 or A-2
visaholders who hired them. Immediate family
members are not authorized to work.
B visas are issued to nonresident
aliens who are visiting the United States
temporarily for business or for pleasure. B
visa holders may not receive compensation
for services in the U.S. The B
classification is divided into two types,
visitors for business (B-1) and visitors for
pleasure (B-2). B-1 visa holders are only
eligible to receive reimbursement for travel
expenses and per diem. B-2 visa holders are
not eligible to receive reimbursements for
any expenses. In some instances, a
combination B-1/B-2 visa is issued. These
visa holders may not accept employment or
perform services for which they are paid
from a U.S. source. They are only eligible
to receive an expense allowance or
reimbursement for expense incidental to
their temporary stay. The language of the
Foreign Affairs Manual suggests that if an
agency or university pays an honorarium to a
nonresident alien B visaholder it must not
exceed reasonable incidental expenses. N3.4
of Section 41.31 of the Foreign Affairs
Manual explains "incidental expenses":
 | "In determining whether an
honorarium or other fee paid an alien
constitutes remuneration of 'incidential
expenses' (i.e., room and board, cost of
travel, pocket money), the consular
officer shall consider the standard of
living to which the applicant is
accustomed and the relative cost of
living expenses in the United States."
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F-1 students are permitted to engage
in on-campus employment for not more than 20
hours per week. On-campus employment may be
performed either on the school's premises or
at an off-campus location that is
educationally affiliated with the school.
Students may be employed full-time on campus
when school is not in session. This type of
employment is authorized by the school and
no particular written endorsement or
permission is required. F-2 visa
holders are dependents of students and are
not authorized to work.
H-1 visas are issued to professionals
who have completed a degree program at an
accredited college or university or have
accumulated equivalent experience. There is
no notation regarding employment on the INS
I-94 card for H-1 visa holders because this
type of visa denotes that employment is
authorized. Normally, an H-1 visa holder
performs services as an employee. The
employer and the duties will be specified.
Work is only authorized for the
sponsoring employer.
J-1 visas are issued to exchange
visitors including students, scholars and
trainees. A J-1 beneficiary may only work
for the sponsoring employer. A J-2
spouse may be employed if authorized by the
INS. An economic necessity must be
demonstrated to receive this authorization.
K-1 visaholders are nonimmigrant
aliens coming to the United States to
conclude a valid marriage with a U.S.
citizen within ninety days after entry. Work
is authorized.
Q visas are issued to participants in
international cultural exchange programs for
the duration of the program, but no longer
than fifteen months. The purposes of these
exchange programs are to provide practical
training, employment and the sharing of the
history, culture and traditions of the
country of the alien's nationality.
D. United States-Canada
Free Trade Agreement
Public Law 100-449 (Act of 9/28/88)
established a special, reciprocal trading
relationship between the United States and
Canada. It provided two new classes of
nonimmigrant admission for temporary
visitors to the United States-Canadian
citizen business persons and their spouses
and unmarried minor children. Entry is
facilitated for visitors seeking
classification as visitors for business,
treaty traders or investors, intracompany
transferees, or other business people
engaging in activities at a professional
level. Such visitors are not required to
obtain nonimmigrant visas, prior petitions,
labor certifications, or prior approval but
must satisfy the inspecting officer they are
seeking entry to engage in activities at a
professional level and that they are so
qualified. The United States-Canada
Free-Trade Agreement was superseded by the
North American Free Trade Agreement (NAFTA)
as of 1/1/94. (See North American Free-Trade
Agreement.)
E. North American
Free-Trade Agreement (NAFTA)
Public Law 103-182 (Act of 12/8/93),
superseded the United States-Canada
Free-Trade Agreement as of 1/1/94. NAFTA
continues the special, reciprocal trading
relationship between the United States and
Canada (see United States-Canada Free-Trade
Agreement), and establishes a similar
relationship with Mexico.
The NAFTA permits Canadians to enter the
U.S. as visitors for business or pleasure
without first obtaining a visa. Mexican
applicants must still obtain a visa or use a
Border Crossing Card. If the individual is a
business visitor engaging in legitimate
business activities of a commercial or
professional nature, they are comparable to
the business visitor (B-1). The business
activities must be necessary incidents to
international trade/commerce. In general,
business visitors may enter the U.S. to (1)
engage in commercial transactions, (2)
participate in litigation, (3) participate
in scientific, educational, professional or
business conferences, (4) conduct
independent research, or (5) be trained.
NAFTA also has special provisions for
certain professionals. The professional visa
status under NAFTA is a Trade NAFTA status
or a "TN"status. To qualify for a TN visa, a
Mexican or Canadian national must hold an
occupation listed in the NAFTA annex of
professionals, and must be entering to
pursue that occupation for a U.S. employer.
There are no special labor applications
regarding prevailing wage or formal petition
documents for Canadians, who may obtain a TN
at the border. For Mexicans, the TN visa
requires INS preapproval, like an H-1B. TN
visa status is valid for one year and is
indefinitely renewable.
TN visaholders must be coming to the U.S. to
provide prearranged professional services.
These services may be through an
employee-employer relationship or through a
signed contract between a self-employed
professional and an agency/university or the
professional's foreign employer and the
agency/university.
F. Visa Waiver Countries
Individuals may enter the U.S. for up to 90
days without a visa if they are nationals
from the following counties: Andorra,
Argentina, Australia, Austria, Belgium,
Brunei, Denmark, Finland, France, Germany,
Iceland, Italy, Republic of Ireland, Japan,
Liechtenstein, Luxembourg, Monaco,
Netherlands, New Zealand, Norway, Pakistan,
Philippines, Poland, Portugal, San Marino,
Spain, Sweden, Switzerland, and the United
Kingdom. Business visitor status (B-1) may
be used for business visitors engaging in
legitimate business activities of a
commercial or professional nature
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