B-1 In Lieu of H-1B Guidance

The Department of State recently issued additional guidance to Consular Officers on how to adjudicate visa applications for “B-1 in lieu of H-1B and H-3” applicants.  It can be hoped that businesses can rely on this guidance, as the requirements for this almost mythical nonimmigrant category have been murky in the past.  Here’s what the Department of State has to say about B-1s in lieu of H-1Bs:

The B-1 in lieu of H-1B and H-3 guidance in 9 FAM 41.31 N11 is under review in an interagency process, but remains in effect until further notice. Consular officers should not hesitate to apply this guidance in appropriate cases. This cable reviews the existing B-1 in lieu of H-1B and H-3 guidance and provides advice for consular officers to effectively apply this guidance.

9 FAM 41.31 N11 states, in part: “There are cases in which aliens who qualify for H-1 or H-3 visas may more appropriately be classified as B-1 visa applicants in certain circumstance; e.g., a qualified H-1 or H-3 visa applicant coming to the United States to perform H-1 services or to participate in a training program.  In such case, the applicant must not receive any salary or other remuneration from a U.S. source other than an expense allowance or other reimbursement for expenses incidental to the alien’s temporary stay. For purposes of this note, it is essential that the remuneration or source of income for services performed in the United States continue to be provided by the business entity located abroad, and that the alien meets the following criteria:

  1. The Department has maintained that where a U.S. business enterprise or entity has a separate business enterprise abroad, the salary paid by such foreign entity should not be considered as coming from a ‘U.S. source;’
  2. In order for an employer to be considered a ‘foreign firm’ the entity must have an office abroad and its payroll must be disbursed abroad. To qualify for a B-1 visa, the employee must customarily be employed by the foreign firm, the employing entity must pay the employee’s salary, and the source of the employee’s salary must be abroad.”
  •  Applicants for all B visas, including B-1 visas, issued must overcome presumption of immigrant intent to qualify for B status.
  • Applicants should only be annotated under B-1 in lieu of H-1B when they plan to engage in activities that would normally require an H-1B.
  • The applicant must continue to be paid by the overseas employer while they are in the U.S. An expense allowance from a U.S. employer is permitted.
  • B visas issued are not intended for long-term placement and should generally be issued for activity in the U.S. that is less than six months in duration.
  • In order to qualify for B-1 in lieu of H-1B, the consular officer must find that the applicant clearly meets the H-1B requirements, and is clearly an employee of the overseas company.
    • The activities performed must meet the definition of “specialty occupation” in that it requires a bachelor’s degree or equivalent.
  • In order to qualify for B-1 in lieu of H-3, the consular officer must find that the applicant clearly meets the H-3 requirements for a trainee, and is clearly and employee of the overseas company.
    • The regulatory criteria for an H-3 petition approval can be found at 9 FAM 41.53 N4.5-1.