B-1 in lieu of H-1B

The B-1 in lieu of H-1B Visa category is a sub-category of the B-1 Business Visitor Visa. The B-1 business visitor’s intended duration of stay in the United States is brief, and involves such activities as attending meetings or seminars or conducting business on behalf of an overseas employer.

B-1 business visitors may be admitted for the period needed to transact their business, not to exceed one year (if for business). However, it is rare for a business visitor to be admitted for more than six months. Once in the U.S., the B-1 business visitor may apply for an extension of stay, which, generally, will be granted upon a showing of necessity and non-violation of the conditions of the visa. Visitor visas typically are issued for multiple entries, meaning a visitor may apply for admission as many times as s/he would like during the validity of the visa.

The five (5) fundamental requirements for classification in the B-1 category are as follows:

1. The foreign national is entering the U.S. for a stay of limited duration;
2. The foreign national intends to depart the U.S. at the end of his/her stay;
3. The foreign national must continue to maintain a foreign residence of which s/he has no intention of abandoning;
4. The foreign national has made adequate financial arrangements to travel to, in, and from the U.S.; and
5. The foreign national will engage solely in authorized business activities while in the U.S.

There are frequent misunderstandings about the nature of authorized business activities for the business visitor. The business visitor must carefully observe the important but elusive distinction between employment, which is not allowed, and doing business on behalf of a foreign employer, which is allowed. The distinction begins but does not end with the requirement that the foreign national’s salary must be paid by a foreign employer (unless the foreign national is self-employed, in which case s/he may not perform the activities of his/her trade or profession while in the U.S.). Although a U.S. company may pay his/her living and travel expenses while in the U.S., the foreign national’s wages must be paid by a foreign employer. Moreover, the foreign national’s activities must be primarily for the benefit of the foreign employer. The attributes of an employer-employee relationship must be found to exist between the foreign national and the foreign entity and not between the foreign national and a U.S. entity. Thus, it is not sufficient to disguise actual employment by or for the benefit of a U.S. employer merely by remaining on a foreign company’s payroll.

The U.S. Citizenship & Immigration Services (“USCIS”) and the U.S. Department of State (“DOS”) have each compiled lists and guidelines of acceptable B-1 activities. Neither list is exhaustive. They demonstrate that B-1 visitors may attend conferences and seminars, may negotiate contracts and disputes, and may observe activities at a related company. Skilled technicians may enter the U.S. for the purpose of installing or repairing machinery sold by their employer within the past year, where the contract of sale requires such service. Skilled workers may also use the B-1 to enter the U.S. to teach U.S. workers or to demonstrate a skill or technique, so long as they are not productively employed.

The B-1 in lieu of H-1B visa is a short term option for individuals who will be posted in the U.S. in a professional level position and who hold the equivalent of a U.S. bachelor’s degree. The visitor must be customarily employed abroad and receive his/her salary only from his/her foreign employer (except reimbursement of incidental travel costs such as housing or per diem). This visa is not intended for long term placement and should be used for activity in the U.S. that is less than six months in duration.

Business visitors often find it useful to obtain a letter from their foreign employer or U.S. host explaining the purpose of their trip, their itinerary and their financial arrangements. This letter can be used to support both the application for the visa and the application for entry once the visa has been issued.

In order to receive a B-1 Business Visitor visa, a foreign national must apply directly to a U.S. Consulate or Embassy. There is no provision for a petition to be first filed with and approved by USCIS.