H-1B Alternatives Series: The little known but useful B-1 in lieu of H-1B
Was your petition one of the estimated 148,000 not selected in this year’s H-1B lottery? In a series of posts we will explore alternatives to the H-1B.
The B-1 visa category traditionally permits foreign individuals to enter the U.S. for temporary, business-related activities such as meetings with U.S-based colleagues or to attend scientific or professional conferences. B-1 business visitors may not engage in productive work, which is typically services performed that inure to the benefit of a U.S. employer.
Carved out in the Foreign Affairs Manual (FAM) is a hybrid B-1 called the “B-1 in lieu of H-1B.” This type of B-1 recognizes that in some situations an individual who would otherwise qualify for an H-1B may more appropriately be classified as a B-1 visa applicant when the applicant is coming to the United States temporarily to perform professional duties related to their overseas employment, will not enter the U.S. labor market, and will remain on their overseas payroll.
The B-1 in lieu of H-1B can be a powerful tool for U.S. employers struggling to bring the skills of their foreign staff to the U.S. An applicant submits their B-1 in lieu of H-1B visa application directly to their home Embassy or Consulate. No filing with the United States Citizenship and Immigration Service is required. Upon approval, the applicant’s visa stamp should bear the notation “B in lieu of H. 9 FAM 41.31 N11” (See below):
In order to qualify for a B-1 in lieu of H-1B, the following conditions must be met:
The employee must customarily be employed by the foreign firm, the foreign entity must pay the employee’s salary, and the source of the employee’s salary must stay abroad for the duration of the stay in the U.S. No salary or other remuneration may come from a U.S. source, however expense allowances or other reimbursement for expenses incidental to travel are permitted;
The employee must overcome the presumption of immigrant intent by establishing the temporary nature of their proposed work in the U.S. and their intent to return to their home country at the conclusion of the work assignment;
The work to be performed in the U.S. must be professional work, i.e. requiring at least a bachelor’s degree level education;
The employee must have at least a bachelor’s degree or equivalent experience; and
The length of work to be performed should be relatively brief – ideally six months or less.
In 2012, the Department of State agreed to evaluate the continued use of the B-1 in lieu of H-1B in response to concerns regarding its misuse. However, the FAM remains unchanged and we are seeing approvals at embassies and consulates, particularly in Western Europe.
Coming up next in the H-1B alternatives series: trade and treaty based options.