Using a B1 in lieu of an H1B

While the H1B Cap ‘contest’ is on for the lottery, many companies will not be able to bring their desired candidates because of the H1B lottery. As such it is good to look into options at an early stage. One of them is the B1 in lieu of the H1B. This visa functions like any B1 visa but is registered to allow certain employees to actually bring a specific foreign workers based on the B1 in lieu of H visas.

Who can apply?

Individuals may apply for a B1 or B1/B2 visa to perform H-1B work in the United States as long as they fulfill the following criteria:

Hold the equivalent of a U.S. bachelor’s degree
Plan to perform H-1B-caliber work or training
Will be paid only by their foreign employer, except reimbursement of incidental travel costs such as housing and per diem. The employee must not receive any salary from a U.S. source.
The task can be accomplished in a short period of time.

These travelers would be admitted as B1 visitors, and may only stay in the U.S. for the time allotted by the Department of Homeland Security upon entry.

Like any other B1/B2 applicant, travelers must still show strong professional, familial and financial or other ties, which indicate a strong inducement to return to the country of origin or another country other than the United States.

When seeking a visa for this purpose, please clearly explain this in the applicant’s BEP cover letter. Please note that if an applicant has a valid B1/B2 visa it will be cancelled without prejudice if a B1 in Lieu of H is issued.

Upon arrival at U.S. border entry posts, applicants should be prepared to explain completely their purpose of travel and source of pay. Travelers are encouraged to carry a letter from their host company and Indian employer listing the traveler’s duties, length of stay and remuneration plans.