United States: State Department Reaffirms B-1 in Lieu of H-1B for Now
In a new cable to consular posts, the State Department has reaffirmed that consular officers may continue to issue B-1 visas in lieu of the H-1B classification. However, this usage is under review by State and the Department of Homeland Security and could be eliminated or restricted in the future.
For the second time this year, the State Department has reaffirmed the use of the B-1 visa in lieu of the H-1B classification, though with some changes, according to a newly released cable signed by Secretary of State Hillary Clinton. But though the classification remains available, it is under review by the State Department and Department of Homeland Security, and could be eliminated or restricted in the future.
B-1 in lieu of H-1B allows qualifying foreign professionals to enter the United States for short trips to perform activities in a specialty occupation that would normally require an H-1B visa, provided that they remain on foreign payroll and their activities benefit the global enterprise for which they work.
The new cable arguably broadens the types of activities that foreign nationals may perform under the B-1 in lieu of H-1B. The new guidance states that it “may be used for activities that would normally require an H-1B.” Previous guidance, which has now been superseded, provided that B-1 in lieu of H-1B was appropriate for “hands-on work that would normally require an H-1B” (emphasis added). The State Department Foreign Affairs Manual, which established the classification, specifies that usage is appropriate for H-1B “services.”
The new cable also specifies that the applicant must “clearly” be an employee of the overseas entity and be paid by that entity. As a result, consular officers may more closely scrutinize the employment relationship between the overseas entity and the B-1 in lieu of H-1B applicant.
The practical impact of the new cable is not yet known. For some time, applications for B-1 visas in lieu of H-1B have been subject to extremely close scrutiny and high rates of denial. A June 2012 cable similarly reaffirmed the classification, but did not result in increased visa issuance.
Fragomen is closely monitoring B-1 visa in lieu of H-1B issuance and policy, and will issue further updates as developments occur.