B-1 in Lieu of H-1B and H-3 still in effect

The U. S. Department of State (DOS) announced that the guidance for issuing B1 visas in lieu of H1B and H3 visas in 9 FAM 41.31 N11 is under review in an interagency process, but is still in effect until further notice. It is important and equally necessary that the consular officers apply required guidance in appropriate cases.

 

9 FAM 41.31 N11 states that there are cases in which a qualified H1 or H3 visa applicant coming to the United States to perform H1 services or to participate in a training program may more appropriately be classified as B1 visa applicants. In such a case, the applicant must not receive any salary or other remuneration from a U.S. source other than an expense allowance or other reimbursement for expenses incidental to the individual’s temporary stay.

 

For purposes of this Note, it is essential that the remuneration or source of income for services performed in the United States continue to be provided by the business entity located abroad, and that the particular individual meets the following criteria:

-      With regard to foreignsourced remuneration for services performed by individuals admitted under the provisions of INA 101(a)(15)(B), the Department has maintained that where a U.S. business enterprise or entity has a separate business enterprise abroad, the salary paid by such foreign entity should not be considered as coming from a ‘U.S. source’;

-      In order for an employer to be considered a ‘foreign firm’ the entity must have an office abroad and its payroll must be disbursed abroad.  To qualify for a B1 visa, the employee must customarily be employed by the foreign firm, the employing entity must pay the employee’s salary, and the source of the employee’s salary must be abroad.

 

Applicants for all B visas, including B1 visas issued under 9 FAM 41.31 N11 (“Note 11″), must overcome the presumption of immigrant intent established by INA 214(b). Note 11 applicants might qualify for B, H, and/or L visas, but may choose a B visa under Note 11 for convenience and efficiency.

 

 

B1 in lieu of H1B:

Applicants fall under this category when they plan to engage in handson work that would normally require an H1B.

To be qualified under the same, the consular officer must find that the applicant clearly meets the H1B requirements, overcomes the 214(b) presumption of immigrant intent and is clearly an employee of the overseas company, and clearly planning to engage in H‐1B caliber activity for a temporary period, normally less than six months in duration.

The H1B caliber work must meet the definition of “specialty occupation”; i.e. it requires a bachelor’s degree or equivalent, and the applicant must clearly have a bachelor’s degree or equivalent experience. 

It may be more difficult for a new hire to establish their employment status with the overseas firm if they are immediately sent to the United States to engage in H1B caliber activity.

Note that while an H1B worker is not subject to the immigrant intent provisions of 214(b) and may change employers in the United States, a Note 11 B1 applicant is subject to 214(b) and must intend to maintain employment with the same overseas employer.

The applicants who would need to file an H1B with USCIS are those who:

-      are not clearly H1B caliber or not planning to engage in H1B caliber activity;

-      are not clearly an employee of an overseas firm or paid by an overseas firm;

-      plan to stay in the United States on more than a temporary, shortterm basis (which generally would mean a stay of more than six months);

-      plan to change employers in the United States; or fail to overcome 214(b).

 

 

B1 in lieu of H3:

Applicants should be considered under this category in the rare case when the proposed training has a handson work component or other component that is permissible in H3 status, but would not clearly be permissible in B1 status, but for Note 11.

To qualify for the same, the consular officer must find that the applicant clearly meets the H3 requirements for a trainee, and is clearly an employee of the overseas company.  A training program designed to train aliens to work in the United States is not an appropriate H3 training program. 

The regulatory criteria for an H3 petition approval are that the proposed training is not available in the alien’s home country, the beneficiary will not be placed in a position that is in the normal operation of the business in which U.S. citizen and legal permanent resident workers are normally employed, and that there will be no productive employment unless it is incidental and necessary to the training and pursuance of a career outside of the United States. 

Further, the applicant must be able to describe the training, and the consular officer will normally require documentation of the training provided by the employer.

If the applicant cannot clearly establish these requirements, then they must file an H3 petition with USCIS.

 

 

Reddy & Neumann, P.C. is an immigration law firm in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the United States in their efforts to bring foreign workers and business professionals to the United States. Our experienced team of immigration lawyers in Houston & Dallas advises clients throughout the H-1B visa application process, including responding to various requests for evidence and consular processing issues. From filing, through approval, and on to appeal, we do everything possible to ensure that your company can bring the best and brightest in the world to the United States.