The U. S. Department of State (DOS) announced that the guidance for issuing B‐1 visas in lieu of H‐1B and H‐3 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 H‐1 or H‐3 visa applicant coming to the United States to perform H‐1 services or to participate in a training program may more appropriately be classified as B‐1 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 foreign‐sourced 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 B‐1 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 B‐1 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.
B‐1 in lieu of H‐1B:
Applicants fall under this category when they plan to engage in hands‐on work that would normally require an H‐1B.
To be qualified under the same, the consular officer must find that the applicant clearly meets the H‐1B 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 H‐1B 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 H‐1B caliber activity.
Note that while an H‐1B worker is not subject to the immigrant intent provisions of 214(b) and may change employers in the United States, a Note 11 B‐1 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 H‐1B with USCIS are those who:
- are not clearly H‐1B caliber or not planning to engage in H‐1B 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, short‐term 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).
B‐1 in lieu of H‐3:
Applicants should be considered under this category in the rare case when the proposed training has a hands‐on work component or other component that is permissible in H‐3 status, but would not clearly be permissible in B‐1 status, but for Note 11.
To qualify for the same, the consular officer must find that the applicant clearly meets the H‐3 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 H‐3 training program.
The regulatory criteria for an H‐3 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 H‐3 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.