How to avoid being denied a B-1 visa in lieu of H-1B

This type of B-1 visa can be attractive to both employees and employers, but there are many pitfalls to avoid.

For example, an applicant may be denied a visa because the embassy believes that the project is not truly short-lived. Alternatively, applicants cannot prove that they are "experts with special knowledge". Alternatively, your company may be seen as an attempt to circumvent the common expectation of filling U.S. positions as citizens, permanent residents, or petition holders under a work visa petition.

It is also important to remember that this type of B-1 visa is not enforced by law. This was made possible thanks to an amendment to the rules by the State Department several years ago. By making this change without amending the immigration law, the Department of State could decide to change it again or remove it entirely (although, even if it were removed, currently valid visas would likely remain valid).

Applying for a B-1 in lieu of an H-1B

The process for applying for a B-1 in lieu of an H-1B is much faster than the H-1B process and is less cumbersome and burdensome for the applicant.

One of the best things about this type of B-1 visa is that it allows foreign employees of foreign companies to work in the United States, at least temporarily, but does not require a petition or other application with USCIS. 

As such, it is a relatively straightforward one-stop shop for UK businesses looking to meet their specific US needs.

Instead of an H-1B visa, a B-1 visa is applied directly through a U.S. consulate or embassy abroad. B1 in lieu of H-1B is not a visa class per se, but is recognized as a B-1 business visa type with special annotations.

Therefore, it is not specifically selectable in the Department of State's visa application. Rather, applicants certify at the visa counter that they are eligible for this type of B-1 visa by answering interview questions and documents submitted with the application.

For this reason, it is recommended that you seek expert advice to avoid problems or errors if you wish to obtain this visa, which is usually displayed as "B-1 in lieu of H-1B" at consulates.

B-1 in lieu of H-1B Visa FAQs

Is B1 Visa Same As H-1B?

No, the B-1 visa is a short-term visitor visa for business-related activity, while the H-1B allows specialized workers with a qualifying job offer from a sponsor to work in the US for up to five years. The B-1 in Lieu of H-1B is a special subset of the B-1 visa that allows business visitors to carry out certain employment-related activity on a short-term basis without the need for sponsorship.

Can I Convert B1 Visa To H-1B?

Individuals can apply for the H-1B visa under the standard application process, provided they meet the visa requirements such as having a qualifying US sponsor.

How long is the B1 visa issued for? 

The B-1 visa is generally valid for up to 10 years, depending on the nationality of the applicant. However, you can only stay for up to 180 days at a time. Excessive use of B-1 visas for entry may result in scrutiny by U.S. border officials. If you are concerned that your visa is being used for long-term residence without a visit, you may be denied entry into the United States.

 

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B-1 in lieu of H-1B

B-1 in Lieu of H-1B requirements

To qualify for this type of B-1 visa, the applicant must be:

- “Customarily employed by,” and remaining on the payroll of a UK (or non-US) firm
- A “specialized knowledge professional” (typically this requires a degree in a field relevant to the applicant’s current work)
- On a project in the United States not expected to last more than 6 months
- Otherwise qualified to obtain a visa, e.g., having nonimmigrant intent to leave the US by the end of their period of stay

Importantly, the worker cannot be paid by a US entity for any work undertaken in the US under the B-1 in lieu of H-1B. They must remain on the payroll and be paid by the overseas organisation. Outside of salary, certain expenses may be allowable such as for food and accommodation.

In general, if you enter the United States on a business visa or without a visa under the Electronic Travel Authorization (ESTA) Visa Waiver Program (VWP), you are not permitted to do paid work or paid work in the United States.

However, some employees or directors may travel to the United States on a B1 visa instead of an H1B visa for employment or educational purposes.

If your business urgently needs to send an employee to the US for temporary work or is preparing to expand in the US, a B-1 visa may be a good tool for your business instead of an H-1B visa.

What is the B1 in lieu of H1B?
Requirements
Application Process
How to avoid being denied
FAQ

What is the B-1 in lieu of H-1B?

The B-1 in lieu of H-1B allows a business to send an employee to the United States for a short-term project if that person is a specialized knowledge professional and provided they remain employed by, and on the payroll of, the non-US business.

Permissible business activities under the B-1 in lieu of H-1B are more extensive than those allowed under a regular B-1 or ESTA. Some scenarios in which the B-1 in lieu of H-1B would likely be deemed appropriate include:

- Your UK business has just signed a large contract with a US client but the process of getting the products or services to the client is complex; the client needs “hand-holding” by someone who is a specialized knowledge professional in your firm with relevant experience, and who will be physically present in the United States for six months or less.
- Your UK business needs to begin a major US recruitment drive in which it onboards US citizens or green card holders for permanent positions for your US operations, but no one in the United States is available to carry out this recruitment, which is expected to take about six months.
- Your expert or knowledgeable professional has traveled to the United States with an ESTA to assist with a specific project at your plant in the United States and stayed longer, but was recently questioned in detail at a secondary inspection by Customs and Border Protection.