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There are certain cases in which foreign nationals who qualify for H-1B visas may be more appropriately classified as B-1 visa applicants in certain circumstances.  For example, a person qualified for H-1B visa applicant coming to the United States to perform short-term services such as persons employed by high-tech companies abroad.  Normally, and H-1B would be appropriate for the work to be performed in the US. However, under limited circumstances the foreign employee could be authorized to perform that H-1b type work on a B-1 visa.

This visa can be quite useful where 1) a U.S. company would like to bring in an employee of an overseas subsidiary, affiliate or branch company for a short duration; or 2) where a foreign company needs to send an employee to the US for a limited period to conduct work on a short-term project for a US company.

Eligibility Criteria

The following circumstances must be met to obtain a B-1 visa to perform H-1B work in the United States:

-The foreign employee must have the equivalent of a U.S. bachelor’s degree that qualifies them to perform the work needed.

-They must plan to perform H-1B caliber work (that is, the work must be in a “specialty occupation” as defined in the H-1B regulations.

-The task must be able to be completed in a short period of time.

-The foreign employee will not receive any salary or compensation from a U.S. source. However, a US source may provide them with reimbursement for travel expenses related to the temporary stay such as housing, meals, laundry and other basic needs.

-You must remain a permanent employee of the foreign employer and you plan to return to your foreign employer after your temporary stay in the US.

-The purpose of the trip must benefit the global enterprise for which they work.

Visa Application Requirements

-The foreign employer should provide the B-1 visa applicant with a letter explaining the nature of the work to be performed, duration of stay and plans for remuneration. A second letter from the US employer can be helpful.
-Have those same letters available to show to the immigration inspector upon entry at the US airport and be prepared to explain the trip and source of pay.

-All other normal B-1 requirements apply including eligibility for the visa, ties to Japan, etc.

Increased Scrutiny of Visa Applications

Eligibility for the B-1 in lieu of H-1b has been highly scrutinized by the U.S. Embassies and Consulates. There has always been a high rate of denial. However, this year the U.S. State Department has issued 2 memos (in the form of cables to the Embassies signed by Secretary fop State Hillary Clinton) providing guidance and reaffirming the use of the B-1 visa in lieu of H-1B classification – one in June 2012 and one in October 2012. This visa category has been under review for some time by the State Dept and the Dept of Homeland Security, and could be eliminated or restricted in the future.  Nevertheless, we hope these recent cables are a sign that the government will grant more of these visa applications going forward.