Working Visitors?

Posted: Updated:
Christl Glier Christl Glier

Most people are familiar with the B visa category, if not by name, then certainly by purpose. It allows foreign visitors to enter the United States for temporary short-term business (B-1) and tourism (B-2). Visitor admission is limited both in duration and scope, and generally, this status does not permit any type of employment in the United States. There are, however, very narrow uses of the B-1 visa category specifically that do allow a foreign national to work and, in the right circumstances, can be a useful option for U.S companies.

B-1 in lieu of H-1B

H-1B is a temporary visa category reserved for foreign professionals who will serve in Specialty Occupations, which are positions requiring theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelor or higher degree in the specific specialty. Those seeking initial H-1B visa status are subject to an annual quota, and with the limited number of H-1B visas available, many foreign national professionals are left without a work visa option. The B-1 in lieu of H-1B visa allows foreign national professionals, who are employed by foreign entities and would otherwise qualify for H-1B status, to work in the U.S. for a very limited period of time (generally up to six months) in a qualifying position. Under the B-1 in lieu of H-1B option, payment of salary or remuneration cannot come from a U.S. source, so the foreign national professional should continue to be employed and paid by the foreign entity during the U.S. assignment. All other H-1B requirements related to Specialty Occupation and individual qualifications must also be met.

B-1 in lieu of H-3

H-3 is a separate temporary visa category permitting foreign nationals to participate in established training programs in the U.S. for up to two years. B-1 in lieu of H-3, therefore, may be a preferred option for shorter-term training programs. A foreign national seeking B-1 in lieu of H-3 will be limited to training for up to six months and cannot receive salary from the U.S. entity. All other usual H-3 training program requirements still apply, including classroom instruction, structured training and supervision designed to benefit the foreign national in pursuing a career outside of the U.S.

Application Process

A foreign national pursuing either “B-1 in lieu of” category must apply for the applicable visa at a U.S. Embassy or consulate, where a consular officer will determine whether the specific requirements are met. The foreign national, like all B visa applicants, must additionally meet the usual B visa requirements, including demonstrating an intention to depart to the U.S. and return to significant ties in the home country. This level of consular discretion can often impact the success of these applications, so applicants and employers should discuss filing strategy and supporting documentation in detail with legal counsel.

B-1 in lieu of H-1B and B-1 in lieu of H-3 are not widely utilized visa categories, as the requirements are strict, and the application process can be difficult. For those who qualify, however, these can be valuable alternatives to permit work or training activities in the U.S. To discuss eligibility for these or other visa categories, please contact Christl Glier or another member of our Immigration Practice.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

  • Perspectives

    • (photo courtesy of Bosma Enterprises)

      Making a Difference Through Meaningful Employment

      Imagine facing a 70 percent unemployment rate. That is the challenge people who are blind or visually impaired are up against when trying to find employment. And it is why Bosma Enterprises' mission to create opportunities is so important. The Governor’s Council designates each March as Disability Awareness Month to promote independence, integration and inclusion of all people who have disabilities. As the state’s largest employer of people who are blind or...

    More

Subscribe

Name:
Company Name:
Email:
Confirm Email:
HTML
INside Edge
Morning Briefing
BigWigs & New Gigs
Life Sciences Indiana
Indiana Connections
INPower
Subscribe
Unsubscribe

Events



  • Most Popular Stories

    • (Image courtesy of Visit Bloomington)

      IU Names Commencement Speakers, Honorary Degrees

      Indiana University has announced the 2019 commencement speakers and those who will receive honorary degrees. Ceremonies in Bloomington and Indianapolis will also feature guest speakers and 10 honorary degrees will be awarded across five campuses.

    • Former Loan Company Officials Charged With Fraud

      Five former officers and employees of an Indiana loan packaging and servicing company have been indicted in federal court. The U.S. Department of Justice says the charges stem from an alleged 13-year-long conspiracy to defraud the U.S. Small Business Administration.

    • IHSAA Basketball to be Televised on FOX Sports

      High school basketball fans will have the opportunity to watch the IHSAA state championship games live this weekend. The IHSAA Boys Basketball Championships will be broadcast live from Bankers Life Fieldhouse on FOX Sports Indiana and Fox Sports Indiana Plus.

    • Photo courtesy of 410 Bakery

      Hoosier Bakery Makes Top 7 Gas Station Conversion List

      A Hoosier bakery has been recognized as one of “America’s 7 Most Beautiful Gas Station Conversions” by Architectural Digest. 410 Bakery in New Albany launched in 2016 as a full retail bakery in what was previously the Economy Filling Station. 

    • (photo courtesy of Rize)

      Rize to Join Restaurant List at The Yard

      A popular brunch restaurant is joining the line-up of restaurants at The Yard at Fishers District. Cunningham Restaurant Group is bringing Rize to the $110 million culinary and entertainment hub. The Fishers location will include more than 3,800 square feet of restaurant space and 120 seats.