B-1 in Lieu of H Visa

This visa category, which is in 9 Foreign Affairs Manual § 41.31 Note 8, has been under attack in Congress, and there has been talks of revoking this category altogether.  While B-1 visa is for visiting the U.S. to consult with business associates, negotiate contracts, or to attend a conference, the ‘B-1 in lieu of H-1B or H-3’ is issued to individuals who are eligible for an H visa but need to come to the U.S. for a short period of time. 

Individuals applying for a B-1 in Lieu of H visa must fulfill the following requirements:

• Plan to perform H-1B caliber work or  to participate in a training program that is permissible in H-3 status;
• Meet the general H-1B/H-3 requirements;
• Must show nonimmigrant intent i.e. strong professional, familial, financial or other ties to their country of origin or another country other than the United States;
• Will continue to be paid only by their foreign employer, except reimbursement of incidental travel costs such as housing and per diem.  The employee must not receive any salary from a U.S. source;
• The task can be accomplished in a short period of time i.e. activity in the U.S. that is less than six months in duration. 

The guidance for issuing B-1 visas in lieu of H visas is currently under review but is still in effect.  On June 21, 2012 the Department of State (DOS) issued a cable to all diplomatic and consular posts stating the consular officers should not hesitate to apply guidance in appropriate cases.