The B-1 classification is available to foreign nationals who desire to enter the U.S. for short-term business activities. The B-1 classification does not, however, permit the visa holder to engage in productive work while in the U.S. Some examples of permissible activities while in the U.S. on a B-1 visa are negotiating contracts, leases, or the terms of commercial transactions, consulting with business associates, or participating in an industry conference. While the B-1 visa by itself does not permit “productive work” (essentially, performing day-to-day work activities) while in the U.S., the B-1 in lieu of H-1B may be used by an employee of a foreign company to temporarily work in the U.S. in a position that would ordinarily qualify for an H1-B. In these cases, the B-1 visa is annotated to read “B-1 in lieu of H, per 9 FAM 402.2-5(F).” This may be a useful option for foreign employers who do not have a U.S. based affiliate that can file H1-B petitions, as well as employers seeking to avoid the administrative difficulty and costs associated with an H1-B petition, where the short-term nature of the project would make an H1-B filing untenable.
B-1 in lieu of H-1 Requirements
The B-1 in lieu of H-1 is appropriate for short-term work projects for skilled workers. The employee’s salary or remuneration for services performed in the U.S. cannot come from a U.S. company, and must be paid from the foreign entity abroad. A U.S. source, however, may provide the foreign worker with an expense allowance or reimbursement for expenses related to the temporary stay. The employee on the B-1 visa must be employed by the foreign company, which must maintain an office abroad and its payroll must be disbursed abroad.
It should be noted that the B-1 in lieu of H-1 visa is appropriate for short term projects only, and is not intended to be a replacement for an H1-B. The employee should not work in the U.S. for extended periods. Furthermore, this visa classification is difficult to obtain and may be more difficult to obtain from certain consulates (for example, these applications are rarely approved in US consulates in India). Lastly, this visa is limited to employment that would qualify for an H1-B visa (namely, the position requires a bachelor’s degree), and cannot be used for all types of employment.
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