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Business Immigration: The B-1 in lieu of H-1B – when and how do I use it for my business?

In order to ensure your business or organization is able to meet your goals, you may bring in employees from overseas for a temporary period to help complete specific tasks or projects. This is very common in high tech industries, but it can occur in just about any business. In most situations, using the H-1B is the default approach.

In some situations, however, your business may be better served by using a B-1 in lieu of H-1B rather than the “traditional” H-1B. There are cases in which individuals who would otherwise qualify for H-1B may more appropriately be classified as B-1 visa  applicants in certain circumstances. In such a case, if the following conditions apply to your specific situation, you will often want to use this alternative option:

  • Remuneration will come strictly from the Overseas Company – The applicant must not receive any salary or other remuneration from a U.S. source other than an expense allowance or other reimbursement for expenses incidental to the individual’s temporary stay.
  • Overseas company must be affiliated with U.S. Company that will “employ” the individual – If the U.S. company has a separate business abroad, the salary paid by such foreign entity is not considered as coming from a “U.S. source” under the Foreign Affairs Manual. However, in order for a company to be considered a “foreign” entity, the company must have an office abroad and its payroll must be dispersed abroad. To qualify for a B-1 in lieu of H-1B visa, the employee must be employed by the foreign entity, the employing entity must pay the employee’s salary, and the source of the employee’s salary must be abroad.
  • The Employee must meet all other B-1 Requirements – The applicant must have a residence in a foreign country, which they do not intend to abandon; intend to enter the United States for a period of specifically limited duration; and seek admission for the sole purpose of engaging in legitimate activities relating to business.

Of course, in addition to meeting these requirements, the tasks that need to be completed by this employee must be temporary in nature. Neither the B-1 nor the H-1B are set up for long-term or permanent employment situations. See our discussions on U.S. lawful permanent residence for those situations!

Who Is Eligible?

When evaluating potential employees to come complete a job, you need to make sure they meet the requirements above as well as the “traditional” H-1B requirements:

  • They must have at least a Bachelor Degree, or equivalent, in a field related to the offered position.
  • They must be working in a specialty occupation, i.e., the position must require a Bachelor Degree in a specific field (or its equivalent).

Special Considerations

When employees are using the B-1 in Lieu of H-1B they need to make sure they have a letter from their foreign employer. In addition, these letters should be carried with them while traveling, especially while at the airport or other point of entry. All the other requirements of a normal B-1 Visa apply, including the eligibility requirements, and having strong ties to their home country. Strong ties could include family, property, or other similar things.

Our immigration system is complicated to say the least, and if you are having trouble making sense of the options for your organization, I would be glad to assist. Please contact me today to learn more!