B-1 in Lieu of H-1B
As a general rule, you cannot undertake paid work or gainful employment in the United States on a business visa or if you enter the US visa-free under the Visa Waiver Program (VWP) with Electronic System for Travel Authorization (ESTA).
However, it may be possible for certain employees or directors to travel to the US with a B1 in lieu of H1B visa for the purpose of carrying out some employment or training activity.
If your business needs to deploy an employee to the US urgently for a temporary assignment, or 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.
In this guide, we explain what the B-1 in lieu of H-1B visa is, what it allows and how to apply.
What is theB-1 in lieu of H-1B?
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 and provided they remain employed by, and on the payroll of, the non-US business.
Permissible business activities under the B-1 in lieu of H-1B are more extensive than those allowed under ESTA. 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 US 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 US recruitment drive in which it onboards US citizens or green card holders for permanent positions for your US 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 they were questioned extensively in secondary inspection by Customs and Border Protection, who were concerned that they were working without authorization.
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-US) 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 to leave the US by the end of their period of stay
Importantly, the worker cannot be paid by a US entity for any work undertaken in the US under the B-1 in lieu of H-1B. They must remain on the payroll and be paid by the overseas organisation. Outside of salary, certain expenses may be allowable such as for food and accommodation.
Applying for the B-1 in Lieu of H-1B
The application process for the B-1 in lieu of H-1B is notably quicker and less demanding and onerous on applicants than the H-1B process.
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.
B-1 in lieu of H-1B visas are applied for directly through a US Consulate or Embassy abroad. 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. As such, 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 advice to avoid issues or errors.
How to avoid a denied B-1 in lieu of H-1B application
While this type of B-1 visa may be attractive for the worker and employer alike, there are a number of pitfalls to be avoided.
For example, the applicant could be denied the visa at the Embassy because the officer does not believe the project is truly short-term. Or the applicant might not be able to prove they are a “specialized knowledge professional”. Or your company may be perceived as attempting to circumvent the general expectation that it will fill its US-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).
Need assistance?
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. To find out whether the B-1 in lieu of H-1B might be appropriate for your circumstances, seek advice.
As specialist US 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. We 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.
B-1 in lieu of H-1B Visa FAQs
Is B1 visa same as H-1B?
No, the B-1 visa is a short-term visitor visa for business-related activity, while the H-1B allows specialized workers with a qualifying job offer from a sponsor to work in the US for up to five years. The B-1 in Lieu of H-1B is a special subset of the B-1 visa that allows business visitors to carry out certain employment-related activity on a short-term basis without the need for sponsorship.
Can I convert B1 visa to H-1B?
Individuals can apply for the H-1B visa under the standard application process, provided they meet the visa requirements such as having a qualifying US sponsor.
How long are B1 visas issued for?
This article does not constitute direct legal advice and is for informational purposes only.
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Who's Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.
