Employers should be aware that in certain limited circumstances, foreign nationals employed abroad can enter the U.S. as business visitors (with visas known as B-1 visas) and perform productive work that normally requires a work visa, such as an H-1B. In addition, they can also participate in training programs that normally require an H-3 visa.
In both cases, foreign nationals can apply for a B-1 business visitor visa directly at a U.S. Consulate abroad without having a petition filed by a U.S. employer with the United States Citizenship and Immigration Services (USCIS) seeking work authorization for the foreign national.
This use of the B-1 visa in this manner is known as “B-1 in lieu of H-1B” and “B-1 in lieu of H-3”. State Department regulations specifically recognize that there are cases in which foreign nationals who qualify for an H-1B or H-3 visa may be granted a B-1 visa and may be admitted to work in the U.S. or for training purposes in very limited circumstances.
Ordinarily, those visiting the U.S. for business purposes are limited to “non-productive” work such as attending conferences, consulting with clients, observing business or professional activities, and negotiating contracts. To protect U.S. workers from foreign competition, productive work is strictly prohibited unless the employer sponsors the foreign national for a work visa, such as an H-1B visa for specialty occupations or an L-1A or L-1B visa for intracompany transferees.
In many cases obtaining work authorization is not available and even if available, not very practical. For example, U.S. private employers can apply for 85,000 new H-1B slots authorized by law each year beginning April 1 for work beginning October 1. This year, however, the 85,000 cap was reached 5 days after April 1, thereby cutting off the ability of U.S. employers to sponsor any more foreign nationals for work authorization in occupations that employers may sorely need.
Employers are also prohibited from sponsoring foreign nationals to work in the U.S. in the L visa category unless the foreign national has worked for a subsidiary or affiliate of the U.S. sponsoring company as a manager, executive or in a “specialized knowledge” capacity for at least one year—the latter is a standard that employers are finding increasingly difficult to meet.
Also in many cases, employers may need individuals to come to the U.S. for a short period of time, such as a month or two, to take on a particular project. However, to sponsor them for an H-1B, even if H-1B slots were open, would not be feasible for such a short period of time given the substantial costs and lengthy processing times involved in filing an H-1B petition. In such cases, the B-1 in lieu of H-1B visa may be an employer’s best option to meet his or her needs in a timely and cost efficient fashion.
To take advantage of the B-1 in lieu of H-1B visa, several criteria must be met. While the requirements are similar to those required for an H-1B, there are differences. For example, unlike with the H-1B, the foreign national working in the U.S. does not have to earn the “prevailing wage” set by the Department of Labor and, in fact, the foreign national’s salary must be paid by the foreign national’s overseas employer. The criteria for B-1 in lieu of H-1B visas include:
In addition, use of the B-1 in lieu of H-1B visa should not just benefit the U.S. company, but should also benefit the company transferring the foreign national. The overseas company should also ultimately control the work of the foreign national in the U.S. In the case of the B-1 in lieu of an H-3 visa, the foreign national must also be paid by his or her employer abroad and must be undergoing training in the U.S. that is not available in his or her home country.
Foreign nationals coming to the U.S. with a B-1 in lieu of H-1B or a B-1 in lieu of H-3 visa must still meet traditional B-1 criteria. Thus, they must continue to maintain a foreign residence and other ties to their home country, intend to enter the U.S. for a specific, limited period of time, and have sufficient financial resources.
Although the B-1 in lieu of H-1B and B-1 in Lieu of H-3 visas have been available for a long time, the “B-1 in lieu of H-1B” especially has not been without critics and controversy, in part because of the alleged fraud and abuse that some say can occur. In 2011, for example, an employee filed a lawsuit against a company in Alabama alleging widespread abuse of the company’s use of the visa. Also in 2011, Senator Charles Grassley asked the U.S. Department of State and Department of Homeland Security (DHS) to consider eliminating the visas.
DHS has indicated that it is considering either removing or amending the section of the Department of State regulations that permits B-1 in lieu of H-1B visas. However, neither DHS nor the State Department have taken action against use of the visas. As a result, the visas are still a viable option for employers, although they should be used with caution and only for legitimate purposes.
If you are interested in finding out more about the B-1 in Lieu of H-1B or the B-1 in Lieu of H-3 visas, please contact an attorney at Minsky, McCormick & Hallagan.
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