State Dept. Proposes Eliminating B-1 in Lieu of H1B Classification

The U.S. Department of State (DOS) has published a notice of proposed rulemaking that, if finalized, would eliminate the B-1 in lieu of H classification. This category is intended to permit foreign companies to send their employees to the United States temporarily, for the purpose of performing duties related to their foreign employment. While the B-1 in lieu of H classification has provisions for both H1B and H-3 activities, this article focuses on its use in the H1B context.

Background on B-1 in Lieu of H1B Category

The B-1 in lieu of H1B category allows a foreign company to place one or more of their employees at a U.S. location briefly, for the purpose of performing actual productive H1B-type job duties. The worker’s salary, however, must be paid by the foreign company, and the money cannot come from a U.S. source.

The B-1 in lieu of H1B category is intended to provide foreign employers with the flexibility to send employees to the United States to perform H1B-type tasks of short duration, without having to go through the administrative complexities and costs of obtaining the H1B, which might prove prohibitive for a brief trip. This is particularly useful for employers without U.S. affiliates, who would be unable to file H1B petitions for such workers. This can also be a helpful provision when the H1B cap has been exhausted, but appropriate services are needed in the interim. Of course, this category is not a substitute for the H1B category, and it is inappropriate to utilize the services of an employee in B-1 status for an extended period of time. Further, consular officers tend to be very reluctant to approve these visa applications.

Proposal to Eliminate B-1 in Lieu of H1B Category

The B-1 in lieu of H1B classification is a fairly controversial category. Much of this controversy is related to past allegations of abuse in the use of the category. The DOS has now proposed eliminating the B-1 in Lieu of H provision altogether. The public has until December 21, 2020 to submit comments regarding this proposed rule. For the time being, the B-1 in lieu of H1B category remains unchanged.

Conclusion

The B-1 in lieu of H1B classification is limited and strictly scrutinized. But, at least for now, the category remains in place. Employers attempting applications in this category, should review their situations to confirm complete compliance with the requirements, and should explore appropriate alternatives for use, if needed in the future.

Copyright © 2020, MURTHY LAW FIRM. All Rights Reserved