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In a new procedural development, U.S. consular posts have started forwarding B-1 in lieu of H-1B visa applications to the Department of State (DOS)'s Visa Office in Washington, D.C., for final review and approval before issuance. This additional review step represents a more centralized approach to evaluating such applications and reflects growing attention to how this limited visa category is being used.
Background: Narrow Use and Increased Oversight
The B-1 in lieu of H-1B classification has traditionally allowed certain foreign professionals to perform short-term, professional assignments in the United States while remaining on the payroll of a foreign employer. The classification requires that the worker remain employed and paid abroad, that the salary or remuneration continue to come from a foreign source, and that the individual not enter the U.S. labor market through local employment or direct hire. The underlying principle is that work performed in the United States under this classification must have no impact on the U.S. labor market and must be incidental to the person's ongoing foreign employment.
Following implementation of the $100,000 "Visa Integrity" fee for new H-1B petitions filed on or after Sept. 21, 2025, U.S. authorities are concerned that some employers may attempt to use the B-1 in lieu of H-1B route to avoid paying the new fee for individuals outside the United States. The concern is that beneficiaries might enter under this classification, then later file an H-1B change of status petition from within the United States, effectively bypassing both the fee and the intended H-1B screening process.
The New Review Process
To address these concerns, DOS is now having consular posts refer B-1 in lieu of H-1B visa applications to the Visa Office in Washington, DC for final review. Consular officers will have to wait for the Visa Office to approve an application before issuing the visa stamp. The Visa Office will assess whether an application meets the narrow legal standards for the category and whether it appears to be an attempt to avoid H-1B program requirements or the new statutory fee.
As a result, applicants applying under this classification may anticipate longer processing times and closer scrutiny. Employers planning to send professionals to the United States for short-term work might evaluate whether the proposed activities fall within permissible B-1 business parameters or whether an H-1B petition (with full fee payment) is the appropriate route.
Implications for Employers
This change underscores the government's focus on fee compliance and the proper use of visa classifications. Employers should consider taking the following steps:
- Reevaluate any planned use of the B-1 in lieu of H-1B category for overseas professionals.
- Ensure that documentation clearly demonstrates the continued foreign employer-employee relationship and that compensation is paid abroad.
- Avoid structuring travel or assignments that might resemble H-1B employment.
- Anticipate possible delays in visa issuance due to the new review process.
While the B-1 in lieu of H-1B option remains available, it is now subject to a more rigorous level of oversight. Use of this already challenging classification should be used in very limited circumstances, and employers may wish to assess alternative immigration options where possible.
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