The "B-1 in lieu of H-1B" visa category permits foreign companies to send their employees to the United States temporarily, for the purpose of performing duties related to their foreign employment.  It is a good option for businesses that have an immediate need for a skilled worker but H-1Bs not available.  Under this visa category, unlike the H-1B, the employee should receive salary or remuneration from the overseas employer and not from the local US source.  There is no requirement of filing a petition with the US government, the application process is faster, and there is no need for a labor condition application to be certified by the Department of Labor.  Additionally, as is the case with H-1Bs, the B-1 in lieu of H-1B visa is not subject to an annual cap.

Requirements of B-1 in Lieu of H1B Visa

The B-1 in lieu of H-1B category enables a foreign entity to deploy their employees in US for a short duration, for the purpose of performing H-1B-type job duties. This option is particularly useful for employers without U.S. affiliates, who would be unable to file H-1Bs or L petitions for such workers.

The applicant has to have the equivalent of a US bachelor's degree and should job duties to be performed should be H-1B caliber, i.e., in a 'specialty occupation' such as engineers, architects, etc. in order to qualify for a B-1 in lieu for H-1B.  The other requirements are:

  • The applicant must not receive any salary or other remuneration (besides an expense allowance or other reimbursement for incidental expenses) from a US source. The remuneration must come from the foreign entity, i.e., an entity with an office abroad and a payroll that is disbursed abroad.
  • The work to be performed must be for a short duration.

Process to obtain B-1 in Lieu of H1B

An application for the B-1 in Lieu of H-1B is processed through consular processing.  In addition to the application itself, the applicant needs to attend an interview at a US Embassy.  Evidence showing the applicant's qualifications, employment details, strong ties to his or her home country is generally required.

Limitations on the B-1 Visa in Lieu of the H-1B Visa

The requirements of having the salary being paid by the overseas employer, continuing to remain employee of the overseas entity, and engaging only in H-1B caliber work, limit the scope of the B-1 in lieu of H-1B visa.  At times, it can be challenging for an applicant to prove that he or she is employed with an overseas entity if he is hired by the entity and required immediately to perform H-1B type work in the US.  If the consular officer is not satisfied that requisite conditions are met, the visa is denied.

Statistics suggest that consular officers are not very well versed with the requirements and practice of, issuing B-1 visas in lieu of H-1Bs, leading to denials and delays.  Since this category visa is not very popular and widely used, the US Customs and Border Protection officers, in whom the decision to admit a foreign national into the US ultimately resides, may not be familiar with the requirements of this visa.  Due to this unfamiliarity, admission could be denied even if the consular officer has granted the visa.  Unlike, the H-1B, the B-1 visa is for a short duration, generally for up to 6 months, and does not allow the flexibility that H-1Bs enjoy. Applicants under the B-1 visa cannot change employers in the US and there is no dependent visa for spouse and children under this category.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.