The B-1 in Lieu of H-1B Visa – Doing Business in the USA

The lesser known “B-1 in lieu of H-1B” visa is not used as often as the H-1B because employers are not familiar with its existence. It is becoming increasingly difficult for employers to hire much needed foreign workers through the H1-B visa program because of the shortfall in the number of visas in this category being made available. An important difference is that while the H1-B requires a US based employer the B-1 in lieu of H1-B requires a non-US employer.

Every year, only 65,000 3 year H-1B visas are offered with this cap being filled very early in the year. An extra 20,000 people are admitted based on obtaining at least a Master’s degree in the U.S.

The B-1 in lieu of H-1B, according to U.S. State department sources, is not a visa category in its own right. It can be used when foreign nationals qualify for a skilled worker visa but they fit the B-1 visa better.

To gain B-1 in lieu of H-1B visa status, an applicant has to be employed by and receive pay from a foreign company. He or she needs to possess a bachelor’s degree or equivalent experience, be taking part in work while on the visa that definitely needs a college degree, and only be intending on working for a few months.

A B-1 in lieu of H-1B visa is not based on an non-immigrant petition, so an applicant must file an application at a U.S. consulate. This visa status is in place to allow a foreign worker to undertake a professional level service in the U.S. and be employed and paid by an overseas employer. The funds to pay the worker must be sourced from overseas and the worker cannot be included on a U.S. payroll.

B-1 in Lieu of H1B Purpose

Basically, the B-1 in lieu of H1-B category provides foreign employers with the chance to send employees to the U.S. to take part in H1B-type jobs for short periods only and can be handy for employers who do not possess a U.S. affiliate, so would not have the opportunity to file an H-1B petition for a worker.

No one is sure how many B-1 in lieu of H1B visas are issued, due to the fact that the Department of State (DOS) keeps a record of the number of B-1 visas issued, but fails to track separately any notations on the visas so they are listed as B-1 visas in DOS records. The U.S. consulate in Chennai, India revealed that they do issue these visas but in limited numbers only; elsewhere, they are treated with caution.

Even though the H1-B is mentioned, a B-1 visa does not permit an employee to take part in U.S. employment on a daily basis but it is a “business” visa that is primarily available for business duties that do not require the need to perform day-to-day work duties. The sorts of activities that can be undertaken on a B-1 visa status are participating in any commercial transactions that do not necessitate being gainfully employed in the United States such as:
merchant recording orders for goods that have been manufactured overseas;
the negotiating of contracts;
consultations with business associates;
litigating in a court case;
taking part in a scientific, professional, educational, or a business convention, conference, or seminar;
taking part in independent research.
If you are thinking of using this visa status to procure a specialized worker from overseas, you will find that at the immigration level a “B-1 in lieu of H-1B” application may be scrutinized more than usual because the department is more likely to question the motives of the worker.

There was a case in 2013 when Infosys Ltd., a consulting firm, paid $34 million as a settlement after it was found the company had wrongfully used B-1 visa holders to undertake jobs that involved skilled labor that H-1B visa status holders should have done.

Of course for those who miss the cap on the annual H-B1 status visa there are other choices such as the TN visa, which is available for Mexicans and Canadians, the E-3 visa available for Australians, the O-1 visa category for applicants who possess abilities who are considered extraordinary, or the extension of optional practical training available for some F-1 visa holders.

The L-1 intracompany transfer should not be ignored and a company could consider moving a foreign national abroad to begin accruing the time required to apply for the L-1 visa for intracompany transfers.

Anyone considering going for this visa option should look at other possibilities first, otherwise they face the risk of denial. For other immigration related articles please visit our blog here: http://syedfirm.com/blog/