B-1 IN LIEU OF H-1

Applicants for H-1B visas can sometimes use the B-1 visa as a substitute to enter the US and perform typical H‐1B services. This little-known category can be helpful when the H-1B cap has been reached. The "B-1 in Lieu of H-1" is not without its critics. Some IT companies have been accused of using the "B-1 in Lieu of H-1" to circumvent visa law. In April, Sen. Grassley called for a "thorough review" of the "B-1 in Lieu H-1" program.

In response The Department of State recently reiterated the standard for the "B-1 in Lieu of H-1". It is essential that the remuneration or source of income for services performed in the United States continue to be provided by the business entity located abroad.

The applicant must: (1) work for a U.S. business enterprise that has a separate foreign business enterprise; (2) the salary paid by such foreign entity should not be considered as coming from a 'U.S. source'; (3) in order for an employer to be considered a 'foreign firm' the entity must have an office abroad and its payroll must be disbursed abroad.

To qualify for a B‐1 visa, the employee must customarily be employed by the foreign firm, the employing entity must pay the employee's salary, and the source of the employee's salary must be abroad. The applicant must also meet the usual non-immigrant requirement incumbent in all B-1 applications.