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New Guidance for Issuing B-1 in Lieu of H-1B Visa

The H-1B visa is a common way for businesses to hire highly skilled workers for temporary employment. However, H-1B visa numbers sometimes run out early. For the 2013 fiscal year, the 85,000 cap was reached two and a half months after the filing period opened last April.

What if a business has an urgent need for a skilled professional but H-1B visas are no longer available? A good option to explore is the little-used “B1 in lieu of H1B” visa.

This type of visa is especially appropriate for businesses based outside the U.S. that need a foreign national to perform work in the U.S. for the benefit of the foreign-based business.

Ordinarily, foreign nationals on B-1 can only engage in limited business activities such as attending meetings and negotiating contracts. They may not work, receive payment from a U.S. source or have a business in the U.S. The B-1 in lieu of H-1B visa allows these individuals to engage in a broader range of activities for a limited duration.

The “B1 in lieu of H1” policy has been criticized as a circumvention of the H-1B program. Earlier this year, Republican Senator Chuck Grassley asked the Department of State (DOS) and the Department of Homeland Security to look into possible improper use of B-1 visas by certain U.S. companies.

The DOS has just issued a cable clarifying the guidelines for the issuance of B-1 in lieu of H-1B visas. This cable supersedes its June 21, 2012 guidance cable.

The guidelines require the B-1 in lieu of H-1B applicant to overcome the presumption of nonimmigrant intent, just as in a standard B-1 visa, by showing strong ties to the home country. In contrast, the H-1B visa allows dual intent and does not require the applicant to maintain residence abroad.

The B-1 in lieu of H-1B visa permits the foreign national to work or engage in an activity that would normally require an H-1B. This means that the activity must meet the definition of a “specialty occupation” and the foreign national must be qualified, i.e. hold a bachelor’s degree or have equivalent experience. If the consular officer is not satisfied that the activities are of H-1B caliber, the applicant will be required to file an H-1B petition with the USCIS.

The foreign national while in the U.S. must be compensated by the foreign employer. The foreign-based business continues to be the employer. The workers may not receive a salary or other remuneration from a U.S. source, except for expense allowance or reimbursement of expenses.

Finally, the B-1 in lieu of H-1B visa can only be issued for activity that is less than six months in duration. It is not intended for long-term placement, unlike the H-1B which is approved initially for a three-year period with a possibility of renewal.

In many ways, then, the B-1 in lieu of H1B visa is markedly different from the H-1B visa.

The B1 in lieu of H1B visa gives employers the flexibility to fill in short-term gaps in their workforce when they arise. Unlike in an H-1B petition, the application process is faster and there is no need for a labor condition application to be certified by the Department of Labor. Also, unlike the H-1B the B1 in lieu of H1B visas are not subject to an annual cap.

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