The "B-1 in lieu of H-1B" visa category permits
foreign companies to send their employees to the United States
temporarily, for the purpose of performing duties related to their
foreign employment. It is a good option for businesses that
have an immediate need for a skilled worker but H-1Bs not
available. Under this visa category, unlike the H-1B, the
employee should receive salary or remuneration from the overseas
employer and not from the local US source. There is no
requirement of filing a petition with the US government, the
application process is faster, and there is no need for a labor
condition application to be certified by the Department of
Labor. Additionally, as is the case with H-1Bs, the B-1 in
lieu of H-1B visa is not subject to an annual cap.
Requirements of B-1 in Lieu of H1B Visa
The B-1 in lieu of H-1B category enables a foreign entity to
deploy their employees in US for a short duration, for the purpose
of performing H-1B-type job duties. This option is particularly
useful for employers without U.S. affiliates, who would be unable
to file H-1Bs or L petitions for such workers.
The applicant has to have the equivalent of a US bachelor's
degree and should job duties to be performed should be H-1B
caliber, i.e., in a 'specialty occupation' such as
engineers, architects, etc. in order to qualify for a B-1 in lieu
for H-1B. The other requirements are:
The applicant must not receive any
salary or other remuneration (besides an expense allowance or other
reimbursement for incidental expenses) from a US source. The
remuneration must come from the foreign entity, i.e., an entity
with an office abroad and a payroll that is disbursed abroad.
The work to be performed must be for
a short duration.
Process to obtain B-1 in Lieu of H1B
An application for the B-1 in Lieu of H-1B is processed through
consular processing. In addition to the application itself,
the applicant needs to attend an interview at a US Embassy.
Evidence showing the applicant's qualifications, employment
details, strong ties to his or her home country is generally
Limitations on the B-1 Visa in Lieu of the H-1B
The requirements of having the salary being paid by the overseas
employer, continuing to remain employee of the overseas entity, and
engaging only in H-1B caliber work, limit the scope of the B-1 in
lieu of H-1B visa. At times, it can be challenging for an
applicant to prove that he or she is employed with an overseas
entity if he is hired by the entity and required immediately to
perform H-1B type work in the US. If the consular officer is
not satisfied that requisite conditions are met, the visa is
Statistics suggest that consular officers are not very well
versed with the requirements and practice of, issuing B-1 visas in
lieu of H-1Bs, leading to denials and delays. Since this
category visa is not very popular and widely used, the US Customs
and Border Protection officers, in whom the decision to admit a
foreign national into the US ultimately resides, may not be
familiar with the requirements of this visa. Due to this
unfamiliarity, admission could be denied even if the consular
officer has granted the visa. Unlike, the H-1B, the B-1 visa
is for a short duration, generally for up to 6 months, and does not
allow the flexibility that H-1Bs enjoy. Applicants under the B-1
visa cannot change employers in the US and there is no dependent
visa for spouse and children under this category.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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