With the H1B Cap met and the constant need to bring foreign talents to the United States, many companies are struggling to actually keep their companies requirements in term of specialized labor. One of the not so well-known option is the B1 in lieu of H1B.
“B1 In Lieu of H1” visa
The visa category “B1 in Lieu of H1” is a sub category of B1 visitor’s visa. This is not very common and frequently misunderstood option. This category has referenced at 9 FAM 41.53 N 5.4. That reference states simply: “For a discussion of whether or not a B-1 in lieu of H classification may be used, (see 9 FAM 41.31 N11).”(3) It also states that this category is appropriate when the recipient performs H-1B-calibre work and is employed by a foreign firm. This visa category has common features of B1 and H1 visa but is different in many aspects. This category is intended to permit foreign companies to send their employees in an executive position or a managerial position or an employee that possesses specialized knowledge or skill to the US to work on a specific contract or project that the employer has with a company in the USA.
Unlike L1 visa, with B1 in lieu of H1 visa, the employee of a foreign company can be sent by the employer to any US company to perform the task of same nature which he/she is doing in the foreign company. This is to be bore in mind that the company in USA has not necessarily to be an overseas subsidiary, affiliate or parent company of the foreign company.
Comparison among B1, H1 and B1 in Lieu of H1 visas:
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. B1 visa is granted for 3 months and can be extended to six months. The employee has to be paid in foreign country currency.
H1 “temporary Worker” visa is for foreign country worker (specialty occupation) hired in the US Company for certain period of time and they are paid by the US Company in US currency. The employee must contain a Bachelor degree in the relevant field.
B1 in Lieu of H1 visa is issued to foreign workers to work in a US company of the same nature of work. This visa is granted generally for 14 months and can be extended but the employee need to return to the home country and reapply. Unlike B1 business visa, the employee is allowed to work and perform productive H1B-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 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. Like B1 visa, this visa category never allows an employee to engage in local U.S. employment.
Unlike H1 visa, in B1 in Lieu of H1 visa there are no requirements of labor certification application, prevailing wage, H-1B dependency, debarment or any of the usual requirements and preconditions that go along with the normal H-1B process
Purpose of the B-1 in Lieu of H1B
The B-1 in lieu of H1B category is intended to provide foreign employers with the flexibility to send employees to the United States to perform H1B-type tasks of short duration, without having to go through the administrative complexities and costs of obtaining the H1B, which might prove prohibitive for a brief purpose. This is particularly useful for employers without U.S. affiliates, who would be unable to file H1B petitions for such workers. This can also be a helpful provision when the H1B cap has been exhausted, but appropriate services are needed in the interim. Of course, this category is not a substitute for the H1B category, and it is inappropriate to utilize the services of an employee in B-1 status for an extended period of time.
Is there any numerical limits?
There is no mention in the Foreign Affairs Manual regarding the numerical limits of the B1 in lieu of H1 visa. It is also unclear how many B-1 in lieu of H1B 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.
What is the Process?
The process to get this visa category is very similar to getting a B1Visa.
In addition to the application itself, the applicant needs to attend an interview at the US Embassy. At the interview, the applicant must provide supporting evidence of the qualifications, contract details and strong ties to his foreign country. If the B-1 in Lieu of H-1B Visa is granted, the Embassy will return the passport with the visa issued within five working days.
Can the visa holder’s spouse obtain a derivative visa to the US?
Unlike other visas, there is no derivative visa to the B-1 in Lieu of H-1B. Therefore, the spouse can only obtain, at best, a simple B1 Business Visa or a B2 Tourist Visa.