B-1 in Lieu of H Visa (Update)

On October 12, 2012 the Department of State (DOS) issued a cable to all diplomatic and consular posts clarifying activities that will permit a B-1 in lieu of H-1B or H-3 annotation. This cable supersedes the June 21, 2012 cable and provides following guidance to the consular posts:

1. Remuneration to the Applicant: The cable clarifies that the U.S. business must not pay the salary or remuneration to the applicant other than an expense allowance or other reimbursement for expenses incidental to the applicant’s stay in the U.S. The salary or the remuneration for beneficiary’s services in the U.S. must continue to come from a foreign entity, and the beneficiary must meet the following criteria:

(a) If the U.S. business or entity has a separate business enterprise abroad, then the salary coming from such foreign business should NOT be considered as coming from a ‘U.S. source’;

(b) For the business to be considered a ‘foreign firm’ the business must have an office abroad and its payroll must be disbursed abroad. For an individual to qualify for a B-1 in lieu of H, the beneficiary must customarily be employed by the foreign business, the foreign business must pay the beneficiary’s salary, and the source of beneficiary’s salary or remuneration must be abroad.

2. Immigrant Intent: The applicant for B in lieu of H must overcome the immigrant intent.

3. Qualifying Activity: The applicant for B in lieu of H should plan to engage in activity that normally would require an H.

4. Payment of remuneration: The applicant must continue to be paid by the foreign employer while they are in the U.S. An expense allowance from a U.S. employer is permitted.

5. Duration of activity: B in lieu of H should only be given for activity that is less than six months in duration.

6. Meet H requirements: B in lieu of H should only be given to an applicant who clearly meets the H requirements and is clearly an employee of the foreign company.

The cable reminds consular officers that 9 Foreign Affairs Manual § 41.31 is under review but remains in effect until further notice. Also to avoid possible delays at the Port of Entry, the cable advises consular officers to annotate the applicant’s visa with “B in lieu of H”.