How Does B-1 Visa in Lieu of H-1B Work and Important Things to Know

Posted April 13, 2019 in Visa

H-1B continues to be a popular non-immigrant temporary visa, allowing skilled foreign workers to work for U.S. employers at least for 3 years. However, there are situations when U.S. employers need skilled workers for shorter periods of time. Going through the cumbersome process of H-1B application (with high chances of not getting selected in H-1B lottery or denials during H-1B processing) seems impractical in such situations. B-1 in lieu of H-1B is a solution which combines the best of B-1 and H-1B visas and optimally caters to the employers in need. Find out the most important aspects of this arrangement.

Which Employers Can Opt for It?

B-1 visa in lieu of H-1B visa is an option for:

U.S. employers or companies that need a foreign worker to perform job duties usually assigned to the H-1B workers. However, a U.S. company can bring only those foreign workers who are currently employed with its foreign-located:
Parent company
Subsidiary or
Affiliate
Foreign employers or companies that need to send their employees to the U.S. companies, again for H-1B-like tasks and duties. Again, a foreign company can send employees only to its U.S.-located:
Client
Affiliate or
Subsidiary

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Which Foreign Workers Qualify for It?

Usually, a foreign worker who qualifies for H-1B visa also qualifies for this arrangement. Though, there are few exceptions. Here are some eligibility conditions:

Permanent employment with a foreign company who is related to a U.S. employer in one of the above-mentioned ways. Contract-based workers are not eligible.
Degree equivalent to U.S.’s Bachelor degree (or higher) in one of the specialized fields like engineering, science, medicine, law, architecture etc., specifically relevant to the job duties in question.
Adequate work experience (12 years or more in usual cases) in the relevant specialty occupation. It is worth mentioning that this condition may be accepted as an alternative to the previously-mentioned degree condition. However, both degree and work experience are required in many cases.

Which Work or Job Duties Qualify for It?

According to the B-1 in lieu of H-1B FAM (Foreign Affair Manuals) set by the Department of State, this arrangement is acceptable for works or job duties that:

Belong to the category of specialty occupation that demands workers with specialized theoretical and practical knowledge.
Are intended to be finished in short periods of time, usually not exceeding 6 months to one year.
Do not engage the foreign workers in the local employment, thereby affecting the local employees in one or the other way.

What Are Its Top Advantages/Provisions?

The arrangement promises a number of advantages to the U.S. employers, like:

Unlike H-1B visa process, there are no designated quotas or caps for B-1 in lieu of H-1B.
The U.S. employers need not to file visa petitions or labor condition applications, as required in H-1B visa application process.
It allows multiple short visits to the U.S., if the work demands so.
One or more employees can be hired depending on the work requirement.
Visa is usually granted in the matter of few weeks.
Foreign employer, and not the U.S. employer, would be the one paying the worker. In fact, the employee would be on foreign employer’s payroll during his or her stay in the U.S. Only exceptions would be the reimbursements related to housing, transport etc.

What Process Is Involved?

In order to obtain B-1 in lieu of H-1B, the foreign employer/employee needs to file applications with a U.S. consulate or embassy nearby. The employee would need to attend an interview at the consulate after which the final decision is taken. The important documents that must be attached with the application or produced during the interview include:

Documents showing agreement between the U.S. employer and foreign employer and outlining the work/job duties in question along with intended duration.
Curriculum vitae of the employee.
Certificates as evidence for the qualification equivalent to Bachelor’s or higher degree.
Documents approving the work experience of the employee (from previous and present employers).
Records of payroll/remunerations from the present permanent employer.
Rental agreement for the applicant.

The copies of these documents should also be carried at the port of entry.

What Are the Chances of Denial?

B-1 in lieu of H-1B denial is not uncommon. First, this visa category is highly scrutinized to prevent any misuse of the arrangement. Second, the consulates as well as the officers working with the U.S. Customs and Border Protection are usually not familiar with this option. Third, if a foreign employer/employee applies for multiple renewal of visa after expiration, it might lead to suspicion.

It is important that you consult an immigration attorney or a B-1/H-1B visa expert to know all important aspects of the arrangement. You may also learn about other similar options like B-1 in lieu of H-3.

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