B-1 in Lieu of H-1B Visa

The “B-1 in lieu of H-1B” is a lesser-known visa category that can be beneficial for many qualified foreign employees. Existing like a hybrid of the B-1 visa and H-1B visa, the “B-1 in lieu of H-1B” category allows a foreign company to send their employees to the United States for a limited period of time for the purpose of performing duties or trainings related to their foreign employment.

You may ask, why not file for a B-1 visa if the foreign employee is traveling to the U.S. for business? Well, the issuance of a B-1 visa is not intended for the purpose of employment while in the U.S. This distinction is very important. Eligible B-1 visitors may enter the U.S. to participate in temporary business activities such as negotiating contracts, consulting with business associates, participating in a conference, attending a business convention, or litigation, to name a few, but not employment itself. The type of qualifying B-1 business activity must be incidental to work that will be primarily performed outside the U.S. Some “business activities” may not qualify under the narrow definition of a B-1 business activity, which means not all foreign employees may qualify for the B-1 visa.

So if a B-1 visa is not an option for foreign employees who want to travel to the U.S. for employment, which visa is? The most common is the H-1B visa. This is a temporary work visa that allows domestic companies to hire foreign talent for the purpose of working in the U.S. However, some employers may not have the resources to sponsor an H-1B visa or the work needed to be completed is more short-term than long-term, so the cost-benefit of filing for an H-1B visa may not be the best business move.

A combination of both the B-1 and H-1B visa provides a solution for foreign employers who need to send an employee to the U.S. for short-term employment. If a foreign employee qualifies for an H-1B visa, the employee may be better classified as a B-1 visa applicant if the foreign company remains the source of income for the services he or she performs in the U.S. (emphasis on foreign). The “B-1 in lieu of H-1B” visa allows a foreign company to send their employees to the U.S. to take on specific projects and engage in hands-on work that would normally require an H-1B visa.

To qualify for the “B-1 in lieu of H-1B” visa, both the domestic and foreign company must meet the requirements of the B-1 and H-1B visas. First, the domestic (U.S.) company must prove the H-1B requirements, demonstrating that the position is a specialty occupation, that there is available specialty occupation work for the requested validity period, and that the foreign employee qualifies for the specialty occupation position. Second, the foreign company must prove the B-1 requirements, demonstrating that they are the continued source of income for the foreign employee while he or she works in the U.S.

The purpose of the “B-1 in lieu of H-1B” visa is for the advancement of the working relationship between the two companies. As long as the U.S. and foreign company can articulate the reasons why that working relationship requires the foreign employee on that project, and provide sufficient documentation to support their claims, this visa category can be a better alternative to either the B-1 or H-1B visa.

For more information on whether your scenario qualifies you for a “B-1 in lieu of H-1B” visa, please speak to one of our qualified attorneys at Reddy & Neumann, P.C. and schedule a consultation at https://appointments.rnlawgroup.com/.

By: Vy Hoang

Vy is the Managing Attorney for Reddy & Neumann, P.C.'s H-1B department. Her focus is on H-1B specialty occupation and covers all phases of the nonimmigrant visa process.