B-1 Visa in Lieu of an H-1B Visa
Most people are aware of the B-1 visa, allowing an individual to enter the US on a temporary basis to conduct “business-related” activities. This option is most often utilized for individuals seeking to start up a new company, or conduct business on behalf of a foreign company.
An important element of both the B-1 and B-2 visas, however, is that the individual seeking admission is prohibited from engaging in employment of any kind.
Knowing what is and isn’t allowed is not much of an issue with the B-2 “Tourist” visa, but the line of demarcation between “business-related” activities allowed on a B-1, and prohibited “employment” activities, is thin and not particularly well-defined.
Generally, allowable “business-related” activities include things like coming to the US in order to secure funding or office space, negotiate and sign contracts, or attend certain business meetings, or any other temporary activities associated with opening a new business in the United States. The clearest legal definition comes from a case involving a tailor who measured customers in the US for suits to be manufactured and shipped from outside the US.
Because the principal place of business and actual place of accrual of profits, if any, was the foreign country, this was considered an appropriate B-1 business activity. In other words, proper B-1 business activities are those that are incidental to work that will principally be performed outside of the US.
An often overlooked and underutilized option for those seeking temporary admission into the US to perform employment-related activities, but would not otherwise qualify for an H-1B, is known as the B-1 in Lieu of H-1B.
The B-1 in Lieu of H-1B is for an individual who would otherwise qualify for an H-1B because they are seeking entry to the US to perform hands-on work rising to the H-1B “specialty occupation” standard (for more info on the H-1B, please see H-1B visa immigration). In order for this to be a viable option, the B-1 in Lieu of H-1B applicant must meet the following criteria:
- The individual cannot receive a salary or remuneration from a US company, although a foreign entity can pay them a salary as long at it’s not considered to come from a “U.S. source.
- The employee must customarily be employed by the foreign firm, the foreign firm must pay the employee’s salary, and the source of the employee’s salary must be abroad.
- In order for an employer to be considered a “foreign firm” the entity must have an office abroad and its payroll must be disbursed abroad.
- The employment should generally not exceed 6 months.
- The work must meet the H-1B “specialty occupation” standard (meaning the position requires a bachelor’s degree or equivalent work experience).
Due to the nuanced nature of the B-1 in Lieu of H-1B, when considering this option, it will likely make sense to discuss other nonimmigrant work visa options as well since the duration of the.
The process of establishing the beneficiary employee is performing qualifying “specialty occupation” work is similar to that of an H-1B. Therefore, if there is any chance at all that the individual will be required to enter to perform similar work in the future or for a period in excess of 6 months, one should seriously consider the H-1B visa if the timing is appropriate.
Likewise, setting up a B-1 in Lieu of H-1B could resemble to some extent an L-1 visa in many respects. Once again, if the individual believes they may be needed to perform ongoing managerial or executive-level activities for a foreign employer in the US for any period of time beyond 6 months, the L-1A visa is an option that should be given serious consideration.
There are also other work visas that may be relevant, such as the TN, H-1B1 visa, O-1, E-3 visa for Australians, etc.
The point is that the B-1 in Lieu of H-1B can be a great option, but it is only a short-term option.
If there is a longer term need, other work visa options should be discussed in conjunction with the B-1 in Lieu of H-1B.
For more information, please contact the award-winning Lightman Law Firm of New York at one of the following: 212-643-0985 or submit a contact form.
Lightman Law Firm was recently honored as New York’s 2015 Immigration Law Firm of the Year by Acquisition International. Additionally, founding attorney, Douglas Lightman, was named a “Rising Star” by SuperLawyers.com and Top 40 Under 40 Immigration Lawyers in New York State by The American Society of Legal Advocates. Lightman Law Firm also carries a 4.9 rating on Google Reviews.
