B Visitor Honorarium & Reimbursement Payments
On 21 October 1998, President Clinton signed into law the American Competitiveness and Workforce Improvement Act (ACWIA). Prior to that legislation, universities struggled for years with the problem of paying the honoraria and reimbursements we had promised to international guest lecturers who came into the United States in visitor or tourist visa classification. Duke has been using the provisions of the law almost since the day it was signed, and during that time we have worked to inform Duke faculty and staff and our international guests of the documentation that federal law requires us to collect and keep.
It is the failure to collect and copy appropriate documents that causes most of the difficulty in making payments and reimbursements to these guests.
This FAQ will summarize the law and help you prepare for and accomplish the specific document collection and record keeping that the federal government requires.
Section 431 of the 1998 law permits educational and nonprofit research institutions to pay reimbursements for expenses and honoraria to international visitors engaged in academic activities. The Visa Services has prepared this FAQ, with tables and links, to give you the basics on how to use this law.
It is important that we understand which people qualify, what documents we need to collect while they are in the United States, and how to prepare the request to Accounts Payable. If we do not collect the required documents, Duke will not have the legal documentation it needs to pay the individual and withhold and report taxation properly. Failure to meet Internal Revenue Service (IRS) and Department of Homeland Security (DHS) documentation requirements can result in fines to Duke.
The text of the law in the Immigration and Nationality Act is very short, and we reproduce it here.
INA Section 212(q)
"Any alien admitted under section 101(a)(15)(B) may accept an honorarium payment and associated incidental expenses for a usual academic activity or activities (lasting not 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 5 institutions or organizations in the previous 6-month period."
The "subsection (p)(1)" reference describes the 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.
- A nonprofit research organization or a Governmental research organization.
Frequently Asked Questions
The visa classification must be that of a "B" visitor, and the individual must be engaged in academic activities at an academic institution or nonprofit research institution. The academic activity can last no longer than nine days. Visitors are limited to five (5) such reimbursements or honoraria payments in a six-month period.
"B" visitor covers all of the following classifications. Any one of theses classifications or a combination, as indicated, can qualify for honorarium payments and reimbursements.
- B-1 visitor for business.
- B-2 visitor for pleasure.
- B-1/B-2 visitor for a combined purpose.
- WB visitor visa waiver for business.
- WT visitor visa waiver for tourism.
- WB/WT visitor visa waiver for a combined purpose.
One of these notations must appear on the Form I-94, Arrival/Departure Record, the small card that is normally stapled into the passport. The I-94 for B-1, B-2 is white; the I-94 for WB, WT is green. The WB or WT allows persons from certain countries to enter the United States without getting a visa stamp in the passport. Note that the key document is the I-94, not the visa stamp in the passport. Departments must see and copy the I-94 while the guest is in the United States. The Department of Homeland Security (DHS) collects the I-94 at departure and it cannot be retrieved or recreated once the guest has left the United States.
It is the failure to copy the I-94 that causes most of the difficulty in making payments and reimbursements to these guests.
Note: New Visa Waiver Program Passport Requirements as of October, 2005. The Department of Homeland Security (DHS) reminds visitors that Visa Waiver Program (VWP) countries will be required to produce passports with digital photographs by October 26, 2005 . Visitors with valid machine-readable passports issued prior to October 26, 2005 , may continue to travel without a visa under the Visa Waiver Program. Passports issued on or after October 26, 2005 require the digital photo. Visitors who are issued a passport after the October 26, 2005 deadline that does not meet these requirements will be required to obtain a visa stamp in order to travel to the United States . For more information on Visa Waiver Program Passport Requirements, please review the Homeland Security website.
Note: ESTA Requirement for VWP Travelers Effective January 20th DHS announced that the Electronic System for Travel Authorization (ESTA) for Visa Waiver Program (VWP) travelers went into effect as of January 20, 2011. VWP travelers who have not obtained approval through ESTA will be denied boarding on any air carrier bound for the United States. ESTA is an automated system that is utilized to determine a visitors’ eligibility to travel to the U.S. under the VWP. It collects the same information as the paper I-94W form. An ESTA authorization is generally valid for up to two years and for multiple entries into the U.S. Effective September 8, 2010, all ESTA registration applications or renewals required a $14.00 payment by credit or debit card. For more information, please review Homeland Security's ESTA webpage.
Under the old law we could reimburse documented expenses only to those admitted in B-1 or WB, "visitor for business," status. We could not reimburse expenses for those in B-2 or WT, "visitor for pleasure" status. No one could be paid an honorarium. Under the new law, all of these kinds of visitors may receive both reimbursement for expenses and payment of honoraria. Again, this applies only if the conditions outlined in Question #1 are present. If the conditions outlined in Question #1 are not met, please refer to Question #12.
See Question 13, Tool 2 for Accounts Payable links and a Checklist.
Important Note: If the foreign national is only being reimbursed for expenses and no honorarium is being paid, it is not necessary for him/her to have a Social Security Number or an ITIN.
It is true. Canadians are not required to carry passports and often the U.S. DHS officer at the border just "waves them through." In order to cross the border, they must carry some form of identification that confirms their Canadian citizenship. Canadians often carry a card version of their birth certificate. You are allowed to accept a document other than a passport that confirms Canadian citizenship. Regarding the I-94, under DHS regulations, any Canadian citizen who is admitted without getting a Form I-94 is presumed to be in the U.S. in "B" status.
To make this as easy as possible for departments and for the international guests, we have created a one-page, front-and-back, invitation and declaration. See the top of this FAQ for links. You may send it to the visitors as invitations and then help them complete the declarations after they arrive at Duke. Visitors must make their own declarations about their prior activities. The Duke department can and should confirm only what we know about this visit to Duke. The Duke department is responsible for making sure the form is completed, for making the necessary photocopies, and for helping visitors apply for the ITIN if necessary. The Duke department is not responsible for confirming other visits or activities.
Those people who meet the criteria (see Question 1, Question 2, and Question 4 above) do not need the J-1. The "B" visitor status is much easier for international scholars to obtain and you do not have to do the paperwork for the J-1. However, any activity that will be over nine days or any activity that puts the scholar over the six-in-six-months limit, does not permit honorarium payments and may prevent reimbursements, as well. (See Question #12 regarding alternative status.) Those scholars still will need J-1 status. Also, in any situation where the department or the scholar prefers the J-1 status, Visa Services will be pleased to provide those documents.
The law uses the term "academic activities," and leaves it to DHS, in consultation with the Department of Education (DoEd), to define the term "academic activities." We are taking a conservative approach on the nature of the activity. Until DHS and DoEd have defined the activities, we will assume that lectures and teaching are covered; other activities will be dealt with case-by-case, subject to review by the Office of University Counsel as necessary.
The Duke Visa Services has been involved in this effort from the beginning. We worked directly with the Association of American Universities (AAU) and NAFSA: Association of International Educators to help craft the law, and we will continue to work with them to recommend a definition to DHS and DoEd that recognizes the broad range of academic activities undertaken in today's global education and research environment. Duke has written a white paper on implementation that is in the hands of AAU and NAFSA for review. Prior to the creation of DHS, the legacy Immigration and Naturalization Service (INS) published a "proposed rule" that was more restrictive than the law. Higher education submitted comments indicating that INS could not implement a rule that was more restrictive than the law that Congress had passed. INS never made the rule "final," and DHS has not attempted to write a new regulation. That means that the text of the law is the only guide and the only limit for our use of the payment and reimbursement options.
Accounts Payable has developed accounting procedures, instructions and forms and posted them on their web site. See below, Question 13, Tool 2, for Accounts Payable links and a Checklist.
If Visa Services can help in any way, please call or e-mail us. Remember that if the activity does not include lecturing or teaching, we need to look at that case before the visitor leaves the home country to come to Duke.
You are right. It is never as easy as it looks. Here are where problems can occur.
- This only works for the "B" visitor visa classification. Someone coming from another university in another classification is not eligible. Diplomats, employees of foreign governments, military personnel or others on foreign government representative visas do not qualify. For example, employees of the World Bank or political officers attached to foreign embassies in the United States hold visa classes specific to the duties of their posts. They are not permitted to earn additional income through activities such as speaking engagements. Those who hold J-1 status must have permission from the home institution prior to doing the work. Those who hold H-1B status at another school are not eligible for this specific kind of honorarium payment. It is sometimes possible for the H-1B to receive payments or reimbursements, but the process can be much more complicated. Departments need to contact Visa Services well in advance to set up H-1B or J-1 visits.
- If we don’t get copies of the Form I-94, we have no evidence that our guests were in an eligible status. This evidence is required under AP procedures to get a check cut and to comply with federal laws and rules.
- If they don’t have Social Security Numbers and the department does not help them file for ITINs at the IRS office, then Duke cannot pay them. Pay would have to be delayed until they could file for a number from the home country, a very long and painful process. See below for "How to Obtain a Social Security Number or an Individual Taxpayer Identification Number (ITIN)."
- Nine days is the absolute visit limit, no exceptions. Any activity lasting longer than nine days does not qualify.
- The academic butterflies flitting from school to school may exceed their limit of six schools in six months. If Duke is school number seven, then the visit does not qualify and we cannot pay.
Without the B Honorarium rules, the options become much more restrictive.
- B-1/WB status may only be reimbursed for expenses. No honorarium may be paid.
- B-2/WT status cannot be reimbursed for expenses or paid honoraria.
- Those in other visa classes can only be reimbursed or paid according to the specific rules of the visa class. Each one is different.
For more information on what you specifically need to do, please review our B Visitor Honorarium: Simplified Instructions webpage.
There are several sources of information.
- For payment, reimbursement, Social Security/ITIN forms, and tax questions, contact Jackie Pollmiller in Corporate Tax by phone at 668-5225.
- For visa questions contact the Visa Services office.
- University Departments contact Lola (Lois) Yelverton by phone at 681-8472, ext. 223
- DUMC and DUHS Departments and Offices contact Dylan Sugiyama by phone at 681-8472, ext. 232.