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B-1 in Lieu of H-1B Visa Guidance

If your business is preparing to expand in the United States, the B-1 in Lieu of H-1B visa may be a good tool to have in your Doing-Business-in-the-USA toolbox.

As a general rule, you cannot work in the United States on a business visa or if you enter the US under the Visa Waiver program using the Electronic System for Travel Authorization (ESTA).

Nevertheless, the B-1 in lieu of H-1B allows a business to send an employee to the United States for a short-term project if that person is a specialized knowledge professional with non-immigrant intent remaining in the employ and on the payroll of the non-US business.

What is the B-1 in Lieu of H-1B?

The B-1 in Lieu of H-1B is not a visa class on its own, but a recognized type of B-1 business visa with a special annotation.

Therefore, it is not available to be selected specifically in the DS-160 Department of State visa application.

Rather, the applicant makes the case that they qualify for this type of B-1 visa at the visa window, through answers to interview questions and the documents submitted with the application.

For this reason, if you intend to obtain this visa, which is typically annotated by the consular officer “B-1 in Lieu of H-1B”, you are advised to obtain expert help.

B-1 in Lieu of H-1B requirements

To qualify for this type of B-1 visa, the applicant must be:

  • “Customarily employed by,” and remaining on the payroll of a UK (or non-U.S.) firm
  • A “specialized knowledge professional” (typically this requires a degree in a field relevant to the applicant’s current work)
  • On a project in the United States not expected to last more than 6 months
  • Otherwise qualified to obtain a visa, e.g., having nonimmigrant intent

Some scenarios in which the B-1 in lieu of H-1B would likely be deemed appropriate include:

  • Your UK business has just signed a large contract with a U.S. client but the process of getting the products or services to the client is complex; the client needs “hand-holding” by someone who is a specialized knowledge professional in your firm with relevant experience, and who will be physically present in the United States for six months or less.
  • Your UK business needs to begin a major U.S. recruitment drive in which it onboards U.S. citizens or green card holders for permanent positions for your U.S. operations, but no one is in the United States is available to carry out this recruitment, which is expected to take about six months.
  • Your expert or specialized knowledge professional has been traveling to the United States on ESTA to help out with certain projects at your plant in the United States and staying for progressively longer periods of time, but recently he was questioned extensively in secondary inspection by Customs and Border Protection, who were concerned that he was working without authorization.

One of the best things about this type of B-1 visa is it allows, at least temporarily, work in the United States by a foreign employee of a foreign business but no petition or other application to U.S. Citizenship and Immigration Services is required. It is therefore a relatively easy, one-stop-shop for a UK business wanting to fulfil certain needs in the United States.

Avoid a denied B-1 in lieu of H-1B application

Sound too good to be true? While this type of B-1 visa may be attractive for your firm, there are a number of pitfalls to be avoided.

For example, your employee-applicant could be denied the visa at the Embassy because the officer does not believe the project is truly short-term. Or your employee-applicant might not be able to prove they are a “specialized knowledge professional”. Or your company may be perceived as attempting to skirt the general expectation that it will fill its U.S.-based positions with citizens, permanent residents, or holders of petition-based, i.e., work visas.

It is also important to remember that this type of B-1 visa is not enshrined in law. It has been made available by an adjustment made some years ago to the Department of State’s operating rules. Having made this change without an amendment to the immigration laws, the Department of State may decide to change it again or remove it altogether (although if it is removed, currently valid visas would likely continue to be recognized as valid).

Could your business benefit from an employee with a B-1 visa?

Navigating the visa application process is complex, and even more so if you would like to obtain this type of B-1 visa.

Due to the application challenges with this route, and in light of the fact that visa denials at a US Embassy can have serious negative consequences for your employee or firm many years into the future, obtaining this type of B-1 visa is not a DIY endeavour.

As specialist U.S. immigration attorneys with many years’ experience practicing before the United States Embassy, we help individuals and employers assess the available immigration options to meet specific requirements.

To find out whether the B-1 in lieu of H-1B might be appropriate for your circumstances, seek advice. We can look at your business needs and provide an appraisal of your position and immigration options.

The US immigration attorneys at NNU Immigration are specialists in the B-1 visa. We help employers and individuals, guiding them through the visa application process.

If you have a question about the B-1 visa, or any other US immigration-related matter, please contact us.

This article does not constitute direct legal advice and is for informational purposes only.

Last updated: 13 December 2019

By Nita Nicole Upadhye

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