The U.S. Department of State (DOS) has published a notification of proposed rulemaking that, if finalized, would eliminate the B-1 in lieu of H classification. This category is expected to allow foreign organizations to send their employees to the United States temporarily. For the purpose of performing duties identified with their foreign employment. While the B-1 in lieu of H classification has provisions for both H1B and H-3 exercises, this article focuses on its use in the H1B context.
Background on B-1 in Lieu of H1B Category
The B-1 in lieu of the H1B category permits a foreign organization to put at least one of their employees at a U.S. location briefly. For the purpose of performing actual productive H1B-type job duties. The worker’s salary, however, must be paid by the foreign organization, and the money can’t come from a U.S. source.
The B-1 in lieu of the H1B category is expected to give foreign employers the adaptability to send workers to the United States. To perform H1B-type tasks of short duration, without having to go through the administrative complexities and costs of getting the H1B. Which may demonstrate prohibitive for a brief trip. This is especially valuable for employers without U.S. affiliates, who might be not able to file H1B petitions for such workers.
This can also be a useful provision when the H1B cap has been exhausted. Yet appropriate services are required in the interim. Obviously, this category is certainly not a substitute for the H1B class. Also, it is wrong to use the services of an employee in B-1 status for an extended period of time. Further, consular officers tend to be very reluctant to approve these visa applications.
Proposal to Eliminate B-1 in Lieu of H1B Category
The B-1 in lieu of the H1B classification is a genuinely controversial category. A lot of this controversy is related to past claims of abuse in the utilization of the category. The DOS has now proposed eliminating the B1 in Lieu of H provision altogether. People, in general, has until 21st December 2020, to submit comments with respect to this proposed rule. For now, the B1 in lieu of the H1B category stays unchanged.
The B-1 in lieu of the H1B category is restricted and strictly investigated. But, at least for now, the category remains in place. Employers attempting applications in this category, should review their circumstances to confirm total compliance with the requirements, and should explore appropriate alternatives for use if needed in the future.