While the H-1B cap for fiscal year 2013 has been reached, the Secretary of State has provided U.S. diplomatic and consular posts with further guidance for issuing B-1 visas in lieu of H-1B visas. There are certain limited circumstances under which an alien who qualifies for an H-1B visa may more appropriately be classified as B-1 applicant. To qualify for a B-1 visa in lieu of an H-1B, the consular officer must find all of the following:
The applicant must customarily be employed by the foreign entity overseas. Note that while an H-1B worker is not subject to the immigrant intent provisions of the statutory regulations and may change employers in the U.S., a B-1 applicant must intend to maintain employment with the same overseas employer. It may also be more difficult for a new hire to establish their employment status with the oversees firm if they are immediately sent to the U.S. to engage in H-1B caliber activity.
The applicant’s salary must be paid by the overseas employer, even while the applicant is in the U.S.. The government has maintained that where a U.S. business enterprise has a separate entity abroad, this foreign branch may qualify as a foreign entity for B-1 purposes. An expense allowance or other reimbursement for expenses incidental to the applicant’s temporary stay is permitted, but the applicant may not receive any salary or other remuneration from a U.S. source.
The work of the applicant must be of H-1B caliber. This means that the work in the U.S. meets the definition of “specialty occupation” in that it requires a bachelor’s degree or equivalent.
The applicant must clearly have a bachelor’s degree or equivalent experience.
The applicant must overcome the presumption of immigrant intent. B-1 visas issued in lieu of H-1B visas 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.
The guidance for issuing B-1 visas in lieu of H-1B is under review in an inter-agency process, but is still in effect until further notice. Consular officers should not hesitate to apply this guidance in appropriate cases. Schedule a consultation to determine your eligibility for a B-1 visa in lieu of an H-1B by clicking here. Page Summary: Individuals who would otherwise qualify for an H-1B visa may have the option of obaining a B-1 visa for work in the U.S.
