The visa category known as B-1 in lieu of H1B is a lesser-known and frequently misunderstood option. This category is intended to permit foreign companies to send their employees to the United States temporarily, for the purpose of performing duties related to their foreign employment. The B-1 in lieu of H-1B classification has become quite controversial in recent months, as a result of an investigation involving an Indian software company. It is alleged that the company misused the B-1 category to place workers in ongoing IT consulting positions with U.S. employers, bypassing the worker-protection provisions of the H-1B program. A discussion of the B-1 in lieu of H-1B follows.
Background: B-1 No Local Work for Hire
Despite the reference to H-1B in the classification, a B-1 visa, even with the in lieu of H-1B notation, never allows an employee to engage in local U.S. employment. In general, B-1 “business” visas are issued for business activities that do not involve the performance of day-to-day productive work duties. Among the permissible activities for B-1 status are: (1) engaging in commercial transactions, which do not involve gainful employment in the United States (such as a merchant taking orders for goods manufactured abroad); (2) negotiating contracts; (3) consulting with business associates; (4) litigating a court case (5) participating in scientific educational, professional, or business conventions, conferences, or seminars; or (6) undertaking independent research.
B-1 in Lieu of H1B Requirements
The B-1 in lieu of H-1B category, however, allows a foreign company to place one or more of their employees at a U.S. location briefly, for the purpose of performing actual productive H-1B-type job duties. The worker’s salary, however, must be paid by the foreign company, and the money cannot come from a U.S. source. The Department of State Foreign Affairs Manual explains that there are cases in which an applicant who qualifies for an H-1 or H-3 visa may, more appropriately, be classified as a B-1 visa applicant in certain circumstances. However, in such a case, the applicant must not receive any remuneration from a U.S. source, with the exception of a reimbursement for expenses incidental to the temporary stay. It is essential that the remuneration for services performed in the United States continue to be provided by the business entity located abroad.
Purpose of the B-1 in Lieu of H1B
The B-1 in lieu of H-1B category is intended to provide foreign employers with the flexibility to send employees to the United States to perform H-1B-type tasks of short duration, without having to go through the administrative complexities and costs of obtaining the H-1B, which might prove prohibitive for a brief purpose. This is particularly useful for employers without U.S. affiliates, who would be unable to file H-1B petitions for such workers. This can also be a helpful provision when the H-1B cap has been exhausted, but appropriate services are needed in the interim. Of course, this category is not a substitute for the H-1B category, and it is inappropriate to utilize the services of an employee in B-1 status for an extended period of time.
It is unclear how many B-1 in lieu of H-1B visas are actually issued, as the U.S. Department of State (DOS) tracks the numbers of B-1 visas issued, but does not separately track the notations on those visas. These visas were recorded simply as B-1 visas in DOS records. The available estimates reflect that this category is used very sparingly. Many U.S. consulates disfavor the B-1 in lieu of H-1B classification and generally decline to issue such visas. Our office has seen some B-1 in lieu of H-1B visas issued in Japan but one must fully document this need and the applicant should be fully prepared to explain the circumstances warranting the issue of this visa.
2012