What is a B-1 in lieu of H-1B Visa?
Updated: Oct 2, 2020
What the heck is a B-1 in lieu of H-1B?
If an H-1B visa allows you to work temporarily in the United States in a specialty occupation, and a B-1 visa allows you to travel to the United States for the purpose of conducting business, what the heck is a B-1 in lieu of H-1B visa?
What is a visa annotation?
To understand what a B-1 in lieu of H-1B is, you first need to know what a visa annotation is. When a consular officer at a U.S. embassy or consulate issues a visa, they can (and sometimes must) include a short, written statement printed on the visa foil that clarifies the exact purpose of the visa. These statements, called annotations, help the Customs and Border Protection (CBP) officers at the airports and other ports of entry quickly process travelers as they enter the United States. For instance, a J visa, which is issued to an exchange visitor, might list the name of the University where the visitor plans to do their exchange, as well as the planned dates of the visit. Available at a glance, these bits of important information can smooth the flow of travelers arriving at a busy port.
Does a visa annotation change what you can do on a visa?
In short, no. The Immigration and Nationality Act (INA) and the regulations that guide its implementation determine what you can do while traveling on a particular visa. The annotation only helps to clarify the purpose of travel. For example, the regulations permit someone to work on the outer continental shelf (think oil platforms far from the coast) using a B-1 visa. The “OCS” annotation on that visa is a reference that clarifies that the traveler is arriving for this somewhat-unusual purpose and immediately lets the CBP officer know what other information to request.
What is a B-1 in lieu of H-1B visa?
A B-1 in lieu of H-1B visa is a B-1 visa with the annotation “B-1 in lieu of H-1B.” The annotation reflects an exception outlined in the State Department’s Foreign Affairs Manual (FAM), which allows for a type of shortcut for certain workers to perform certain kinds of jobs in the United States on a B-1 visa. Foreign workers in specialty occupations (usually with at least a university degree, but sometimes with equivalent experience) are allowed to use this shortcut to work for a short time in the United States without going through the long and oversubscribed process of getting an H-1B visa. The ideal candidate for this kind of visa applicant has a short-term assignment in the United States, often at a subsidiary of their foreign employer, where they need to complete a short project while receiving their pay from abroad.
The most qualified applicants for this kind of visa can demonstrate that their work will be economically advantageous to the United States, often creating jobs in the United States, rather than taking work away from an otherwise qualified American. An example of this would be a highly-experienced engineer with an advanced degree, traveling for a short time to train American engineers and workers on proprietary production techniques for use in a newly built factory.
What do travelers need to be aware of?
As the world economy has modernized and changed, some visa laws and regulations have begun to look outdated. They don’t fit particularly well with the job descriptions of certain consultants and other service-sector workers. In some instances, a B-1 in lieu of H-1B visa can provide a way for these workers to work for short amounts of time in the United States. Sometimes these assignments will only last for one trip but they might also be a bridge toward the company setting up a longer-term presence in the United States, for instance through the establishment of a subsidiary or through an acquisition.
But, despite their clear utility, in-lieu-of visas create a lot of grey areas and room for differences in interpretation. And where there is room for interpretation, there is also room to get into trouble. A strategy that involves the aggressive use of ESTA, B-1 or B-1 in lieu of H-1B visas and an overly broad interpretation of what is allowed on them could land a traveler or a company in trouble with immigration authorities. An experienced immigration lawyer knows what will and will not be permitted and can advise you with regard to short and long-term strategies for meeting your business goals in the United States.