by Jenifer M. Brown, Christl P. Glier, Kristin Kelley, and Areeba Ghouri
Ice Miller LLP is and IMA B2B Partner
Most people are familiar with the B visa category, if not by name, then certainly by purpose. It allows foreign visitors to enter the United States for temporary short-term business (B-1) and tourism (B-2). Visitor admission is limited both in duration and scope, and generally, this status does not permit any type of employment in the United States. There are, however, very narrow uses of the B-1 visa category specifically that do allow a foreign national to work and, in the right circumstances, can be a useful option for U.S companies.
B-1 in lieu of H-1B
H-1B is a temporary visa category reserved for foreign professionals who will serve in Specialty Occupations, which are positions requiring theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelor or higher degree in the specific specialty. Those seeking initial H-1B visa status are subject to an annual quota, and with the limited number of H-1B visas available, many foreign national professionals are left without a work visa option. The B-1 in lieu of H-1B visa allows foreign national professionals, who are employed by foreign entities and would otherwise qualify for H-1B status, to work in the U.S. for a very limited period of time (generally up to six months) in a qualifying position. Under the B-1 in lieu of H-1B option, payment of salary or remuneration cannot come from a U.S. source, so the foreign national professional should continue to be employed and paid by the foreign entity during the U.S. assignment. All other H-1B requirements related to Specialty Occupation and individual qualifications must also be met.
B-1 in lieu of H-3
H-3 is a separate temporary visa category permitting foreign nationals to participate in established training programs in the U.S. for up to two years. B-1 in lieu of H-3, therefore, may be a preferred option for shorter-term training programs. A foreign national seeking B-1 in lieu of H-3 will be limited to training for up to six months and cannot receive salary from the U.S. entity. All other usual H-3 training program requirements still apply, including classroom instruction, structured training and supervision designed to benefit the foreign national in pursuing a career outside of the U.S.
A foreign national pursuing either “B-1 in lieu of” category must apply for the applicable visa at a U.S. Embassy or consulate, where a consular officer will determine whether the specific requirements are met. The foreign national, like all B visa applicants, must additionally meet the usual B visa requirements, including demonstrating an intention to depart to the U.S. and return to significant ties in the home country. This level of consular discretion can often impact the success of these applications, so applicants and employers should discuss filing strategy and supporting documentation in detail with legal counsel.
B-1 in lieu of H-1B and B-1 in lieu of H-3 are not widely utilized visa categories, as the requirements are strict, and the application process can be difficult. For those who qualify, however, these can be valuable alternatives to permit work or training activities in the U.S.
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