Filing for an H-1B may not always be practical for foreign employers who only intend to send their employees to the United States for a short period of time. The B-1 in Lieu of H-1B category enables foreign employers to send their employees to the United States to perform specialty occupation work for up to six months without having to go through the lengthy and often expensive adjudication process of an H-1B. The Law Firm of Shihab & Associates has decades of combined experience in handling B-1 and H-1B cases. Contact us today to learn more about filing for a B-1 in Lieu of H-1B.
What is B-1 in Lieu of H-1B?The B-1 Visitor Visa is typically utilized by foreign nationals seeking to come to the United States to engage in certain qualifying business activities for a short period of time. In general, foreign workers may not come to the United States to engage in day-to-day work, but rather to perform work that is incidental to their foreign employment. The B-1 in Lieu of H-1B category permits foreign employers to send their employees temporarily to the United States in order to perform specific duties in a specialty occupation for a short period of time.
What are the Requirements?1. H-1B Visa Requirements Clearly Met
In order to be eligible for a B-1 in place of an H-1B, the B-1 foreign worker must be qualified under the H visa requirements. Specifically, the foreign worker must be coming to the United States in order to be temporarily engaged in specialty occupation work and the foreign worker must be qualified to perform the specialty occupation work. While there are additional ways to prove that a position is a specialty occupation, the most common way to do so is to establish that a bachelor’s degree or higher is the normal minimum requirement for the position. Once it is established that the position is a specialty occupation, the foreign worker must also show that he or she is qualified to perform the duties associated with the specialty occupation. This is often shown by proffering evidence that the foreign worker has a bachelor’s degree or higher in a field relevant to the position.
In order to receive a B-1 in lieu of an H-1B visa, the work must clearly be in a specialty occupation and the foreign worker must clearly be qualified for the position. If the H-1B requirements are not clearly met, then applicant should file H-1B petition with USCIS.
2. Foreign Worker May Not be Employed in the United States/Employer Must Be Abroad
The foreign worker must be employed by the foreign entity and may not be employed by the U.S. entity. Typically, foreign workers employed by a foreign entity performing services in the United States under the B-1 visa are engaged in activities that are incidental to work that is principally performed outside the United States. In other words, the duties performed by the foreign worker must be related to the foreign worker’s employment with the foreign entity. In addition, the services offered by the foreign entity must continue to be offered abroad for the duration of the foreign worker’s stint in the United States.
Keep in mind that it is difficult to prove that a foreign worker will continue to be employed by the foreign entity when that foreign worker is a new hire and being sent to the United States immediately or soon after being hired by the foreign entity.
Another fact to consider is that, although a foreign employee may switch employers once in the United States under H-1B, under the B-1 visa category, the foreign worker must intend to maintain employment with the same foreign entity while working in the United States.
3. Source of Compensation Must be Abroad
B-1 visa holders may not receive any salary or other form of compensation for work from a U.S. source. Any remuneration or income received by the B-1 visa holder must be provided by a source from outside the United States. For instance, if a foreign business entity is affiliated with a U.S. entity and sends a foreign worker to the United States to perform services or undergo training at the U.S. entity, then the salary or compensation paid to the foreign worker must come from the foreign entity and absolutely may not come from the U.S. entity. This means that the payroll must be dispensed abroad.
There is a minor exception to this rule. B-1 visa holders may receive an expense allowance or may be reimbursed from a U.S. source for any expenses incidental to the B-1 visa holder’s temporary stay in the United States. However, the amount may not be more than reasonable expenses, such as meals, lodging, laundry, and other basic services and cannot be compensation for services performed in the United States.
4. No Immigrant Intent/Finite Duration
Unlike the H-1B visa requirements, B-1 visa applicants must overcome the presumption of immigrant intent. In many nonimmigrant visa categories, it is presumed that a foreign national coming to the United States intends to remain there. Thus, foreign nationals seeking certain nonimmigrant visas must overcome this presumption in order to be eligible for the nonimmigrant visa.
Under the H-1B nonimmigrant visa category, a foreign national may have the dual intent to enter the United States temporarily for work, but also intend to eventually seek permanent employment in the United States. However, under the B-1 nonimmigrant visa category, applicants must prove that they intend to depart the United States once their B-1 status expires. Ways to overcome the immigrant intent presumption is to establish that the foreign worker has a residence abroad, financial ties, employment, or other significant ties to their country of residence.
In addition, the foreign worker’s time in the United States must be specifically limited in duration and that duration must be consistent with purpose of the trip. Thus, if a foreign worker is coming to the United States to perform specific duties, the time requested for the performance of those duties must be consistent with the time it would actually take to perform said duties. Typically, a B-1 visa will be limited in duration to six months or less. Requesting more than six months may make overcoming the presumption of immigrant intent particularly troublesome.
How to Contact UsIf you have questions about the B-1 in Lieu of H-1B program and/or you’re considering utilizing this useful alternative to the H-1B, contact the Law Firm of Shihab & Associates to speak with one of our knowledgeable attorneys. Our law firm handles all types of nonimmigrant visas, including B-1 applications and H-1B visa petitions and many more.