The H-1 quota cuts down 50% or more applications each year. Legally, employees of foreign companies or entities can try and obtain B-1 visa in lieu of H-1 visas as long as they fulfill the following criteria outlined by the US Department of State.
Each intended B-1 (in lieu of H-1) entrant must:
1. Hold the equivalent of a U.S. bachelor's degree
2. Plan to perform H-1B-caliber work or training
3. Be paid only by their foreign employer, except reimbursement of incidental travel costs such as housing and per diem. The employee must not receive any salary from a U.S. source.
4. Present to the consulate clear indication/evidence that the task can be accomplished in a short period of time, perhaps within a few weeks or months.
5. Like any other B1/B2 applicant, show to the US consulate strong professional, familial and financial or other ties, which indicate a strong inducement to return to the country of origin or another country other than the United States.
These entrants would be admitted as B1 visitors, and may only stay in the U.S. for the time allotted by the Customs and Border Protection upon entry.
Upon arrival at U.S. border entry posts, entrants should be prepared to explain completely their purpose of travel and source of pay. They should carry a letter from their host company in the USA and their foreign employer listing the entrant's duties, length of stay and remuneration plans.
We are also encouraging our multinational clients to start looking at the L-1B option beginning 31 August 2015, when the new L-1B policy kicks in.
1 July 2015
FAQ: B-1 in Lieu of H-1
The following questions were forwarded to us by one of our clients, which I am posting as FAQ. In the planned July conference for our clients, I will have additional information and planning suggestions. We can then discuss the issues further.
Q1. Is B- in Lieu of H-1 a multiple entry visa or only one time?
A1. Essentially, this is a B-1 visa. Therefore, if the agreement between the USA and the country from which the B-1 entrant is coming allows multiple entry visas, the B-1 in lieu of H-1 is also likely to be a multiple entry visa.
Q2. Is iB-1 in Lieu of H-1 employer specific?
A2. Yes. That is the most likely interpretation – employer AND project specific.
Q3. Is it stamped for 10 years as a regular B1 or for a lesser duration?
A3. Almost certainly for a lesser duration.
Q4. Advantages or disadvantages of B1 in lieu of H1?
A4. Main disadvantage: it is not a dual intent visa. The B-1 in lieu of H-1 would require proof of ties to home country and can be declined rather easily.
Main advantage: There is no quota issue, it is likely to be a lot quicker process, less expensive and subject to fewer restrictions than H-1.
Q5. If an employee has B1 stamped, and then visits the consulate for B1 in lieu of H1, will his previous B1 still be valid or considered invalid?
A5. Consulates have indicated that they will cancel existing B visas before considering the option for B-1 in lieu of H-1.
Q6. Can we file H1 for an applicant who is in the US on B1 in lieu of H1?
A6. There is no bar on this change, but I would want to review the facts of each case, the project, representations made to the consulate, etc. on a case-by-cases basis.
Note for our clients:
In July, 2015 we will conduct an hour-long free conference call for use of B-1 and L-1B visas. This session is by invitation only reserved for our existing corporate clients for whom we are the sole-source immigration law services provider. Our presentation will be followed by a question-answer session. Please contact your case managers in our office to receive an invitation.