After years of agonizing and obtaining H and J visas for their visiting professors and scholars, academic institutions can now find relief in the proposed INS regulation that will allow those aliens to receive honoraria for brief engagements. The INS has proposed a rule that would add a new section 212(q) to the Immigration and Nationality Act (Act), relating to the acceptance of academic honoraria by B nonimmigrant visitors. This rule would implement section 431 of the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) (P.L. 105-277). Comments are due by July 29, 2002. The text of section 212(q) of the Act is as follows:
(q) Any alien admitted under section 101(a)(15)(B) may accept an honorarium payment and associated incidental expenses for usual academic activity or activities (lasting no longer than 9 days at any single institution) as defined by the Attorney General in consultation with the Secretary of Education, if such payment is offered by an institution or organization described in subsection (p)(1) and is made for services conducted for the benefit of that institution or entity and if the alien has not accepted such payment or expenses from more than five institutions or organizations in the previous 6-month period.
Section 212(p)(1) of the INA, as amended by ACWIA, defines the relevant institutions and organizations as:
- an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965), or a related or affiliated nonprofit entity; or
- a nonprofit research organization or a Government research organization. ***
Are both B-1 Visitors for Business and B-2 Visitors for Pleasure Covered by This Proposed Regulation?
Both B-1 Visitors for Business and B-2 Visitors for Pleasure are covered by this proposed regulation. However, since participation in academic conferences and other academic activities is more properly a B-1, rather than a B-2 activity, aliens coming to the United States to engage in such activities must seek admission to the United States as a B-1, rather than as a B-2, nonimmigrant. This is particularly so if the events for which the honoraria are offered are arranged before the alien travels to the United States. For those aliens eligible to seek admission under the Visa Waiver Program (VWP), the corresponding WB classification (Visa Waiver/Business) is the proper one, rather than WT (Visa Waiver/Tourist).
How Does the INS Propose to Define Honorarium?
Honorarium is defined as a gratuitous payment of money or any other thing of value to a person for the person's participation in a usual academic activity for which no fee is legally required. An honorarium may be of any dollar amount with no minimum or maximum dollar amount required. An honorarium is altogether different than a salary that an individual receives on a continuing basis.
How is the Term "Usual Academic Activity" Defined?
"Usual academic activity" is broadly defined as any academic activity that includes lecturing, teaching, and sharing knowledge. Other related activities such as meetings of boards or committees that benefit the institution are also included within the definition. In regards to performances, master classes, and readings, such activities are within the definition of "usual academic activity" if they are not commercial in nature, i.e., they must be open to students and/or the general public free of charge, with no sale of general admission tickets.
Is the INS Proposing Limitations on the Honorarium Activity and Frequency?
Section 212(q) of the Act provides that during a 6-month period, an alien may accept an honorarium and reimbursement of the associated expenses from no more than five organizations, and that the event may not last more than 9 days at any single institution. The term "single institution" may apply to an organization that has more than one branch or campus. For example, if an alien is making the same presentation at three different campuses of a State university during a 9-day period and is being reimbursed with one honorarium payment, the INS will regard this as a single visit. However, if the alien's intention is to address three different topics at a multi-campus organization over the 9-day period and the different campuses are paying the alien separate honorarium payments for the visits, the INS will consider this to be three separate visits. These visits will be charged against the overall five visits allowed during the 6-month period.
Will the INS Require Documentation From Arriving Aliens Stating the Intent to Participate in Honorarium-related Activities?
The INS will require that aliens presenting themselves for admission to the United States as B-1 or WB visitor for business, and who state the intent to participate in honorarium-related activities, be in possession of the letter of invitation that has been issued by the institution sponsoring the activity. Invitation letters should clearly specify the honorarium-related event or activity as well as the date and location of the activity.
Does the INS Consider Organizations Sponsoring Honorarium-related Events to be Employers Subject to the Provisions of Section 274A of the Act?
Organizations sponsoring honorarium-related events will not be considered to be employers subject to the provisions of section 274A of the Act as long as their actions are consistent with this rule. The prohibitions and requirements of section 274A of the Act and 8 CFR part 274a only apply in the employment and contract services context. In the context of honorarium-related events, however, the relationship between the organization sponsoring the event and the individual providing the honorarium-related academic activity is neither one of employer/employee nor based upon contract services. But the fact that an activity for which an entity may offer an honorarium is not "employment" or contract services does not mean an entity can abuse the honorarium process to circumvent the prescribed nonimmigrant petition process that all United States employers must follow, in those cases where it will, in fact, be employing the services of a qualified alien worker.
What Penalties Might an Alien Incur Should he or she be Found to be in Violation of Status?
An alien who collects honorarium in excess of the limitations stipulated by the Act will be considered to be in violation of his or her B or WB nonimmigrant status and amenable to removal under the provisions of section 237(a)(1)(C) of the Act. In addition, an alien who is applying for admission to the United States in order to participate in honorarium-related activities, and who is found to have exceeded the limitations on such activities stipulated by the Act, and who knowingly misrepresents himself or herself to the admitting INS inspector about material facts regarding the alien's honorarium-related activities, may be found to be inadmissible pursuant to the misrepresentation provisions found in section 212(a)(6)(C)(i) of the Act.
The INS has long interpreted "business" to refer to activities of a commercial or professional character that are incident to international trade or commerce, not including purely local employment or labor for hire. Regular and continuing professional practice in the United States has not been within the scope of the temporary visitor for business nonimmigrant classification. As a result of the amendments made by ACWIA, "business" is now interpreted to include academic activities for which a B nonimmigrant visitor can be paid an honorarium. This is a big gain for the U.S. academic community, which has had to obtain H and J visas for aliens invited for brief engagements.