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B-1 Business and B-1 in Lieu of H-1B Visa Programs – Department of Homeland Security to investigate the current use of such visa programs

In general, any person holding a B1 or B1/B2 visa may be eligible to perform H-1B work in the United States as long as they fulfill the following criteria:
-Hold the equivalent of a U.S. bachelor’s degree
– Plan to perform H-1B-caliber work or training
– Will 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.

These travelers would be admitted as B1 visitors, and may only stay in the U.S. for the time allotted by the Department of Homeland Security upon entry. Like any other B1/B2 applicant, travelers must still show strong professional, familial and financial or other ties, which indicate a strong inducement to return to the country of origin or another country other than the United States.

Consulate Generals worldwide are prepared to issue B1/B2 visas to qualified applicants for this purpose. These visas may also be used for tourism. Current holders of B1/B2 visas may already use this provision without seeking another visa.

Having said that, abuse in the B1 in lieu is on the rise, therefore the recent proposal from Senator Grassley is not surprising.

Senator Charles Grassley of Iowa has asked the Department of State and the Department of Homeland Security to investigate the current use of the B-1 Business Visitor and B-1 in lieu of H-1B visa programs. In a letter to Secretary of State Hillary Clinton and Secretary of Homeland Security Janet Napolitano, Senator Grassley expressed his concern that companies are using the B-1 business visa in order to circumvent the numerical limit and the prevailing wage requirements of the H-1B visa program.

Specifically, he cites a formal complaint that has been filed against a company in an Alabama Circuit Court alleging that the company brings low-level, unskilled foreign workers as B-1 business visitors to work in full-time positions in violation of the immigration laws under the guise of attending business meetings.

Senator Grassley asked the Department of State and the Department of Homeland Security to provide, among other things, information regarding the number of B-1 in lieu of H-1B visas issued each year for the past five years, the consular posts that issued such visas, the employers that are using these visas, the lengths of time the visa holders remain in the United States, the ways in which the Department of State verifies an employer’s claim about the B-1 visa holder’s activities while in the United States, and the actions taken against employers that abuse the B-1 visa program. Senator Grassley also requested that the B-1 in lieu of H-1B program be reviewed, and he questioned whether the visa category should be eliminated entirely.

We have been processing B1 visas for legitimate employers with global operations. The concern is that now there will be increased pressure on Consular officers to reject more B1 applicants, this will make it tougher for legitimate US employers to conduct business in the international market place.