Little Known Visa a Great Option for Many Would-be H-1B Candidates

Many people apply for a B-1 visa when they seek to come to the United States for temporary, business-related activities such as attending academic or professional conferences.  B-1 visa holders are prohibited from engaging in “productive work,” defined as services that benefit an employer. However, the B-1 visa is very discretionary, and when a person is applying to work closely with a U.S. colleague or company, several of these visa applicants are advised by the Consulate to apply instead of an H1-B visa.  On the other hand, the H1-B visa is a very sought-after visa that typically reaches the cap only days after applications are accepted on April 1st of each year.  So many people apply, in fact, that there is something known as the H-1B lottery. Last year, 148,000 were not selected, so you can understand how many people apply each year. However, there is a little-known visa option that many people, even attorneys, often overlook: the “B-1 in Lieu of H-1B visa.”

In the Foreign Affairs Manual, the “B-1 in lieu of H-1B visa” is a hybrid visa that seems to be carved out for persons who could possibly qualify for a traditional H-1B visa but would more appropriately be termed a B-1 visa applicant. These individuals are generally interested in visiting the United States in order to temporarily perform professional duties which are related to their employment overseas. These people are not intending to enter the United States labor market, nor will they be on the payroll of a U.S. employer.

The American market is increasingly relying on foreign talent as businesses become more complex and globalized and involve more international aspects.  Thus, the B-1 in lieu of H-1B can be an attractive option for many foreigners. In order to apply for this, the applicant may submit the visa application online and later bring the evidence in person to their home Consulate or Embassy. It is unnecessary to file with the United States Citizenship and Immigration Service.

Of course, an applicant must meet certain conditions in order to qualify for the B-1 in lieu of H-1B:

1. They must have a bachelor’s degree (at least) or equivalent experience.

2. The work performed in the United States must be professional work which requires at least a bachelor’s degree to perform.

3. The term of employment needs to be for a shorter amount of time—ideally, fewer than six months.

4. They must be already employed by the foreign entity of the U.S affiliate. Again, the foreign individual must be getting paid by his foreign employer. No remuneration can come from a United States source. However, this does not apply to expense allowances or other expenses related to travel.

5. Finally, the employee must overcome a presumption of immigrant intent. He or she must show that their proposed work is of a temporary nature. In addition, he or she must demonstrate intent to return to his or her home country when the work has been completed.

If you believe that you or your loved one is a strong candidate for the B-1 in Lieu of H-1B visa, contact me to schedule a consultation.

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