Hybrid Visa Offers Alternative to Limited H-1B Visa

01 February 2016 Labor & Employment Law Perspectives Blog

For an ever-increasing number of U.S. employers, the start of another calendar year also means H-1B season has arrived. However, given the competitive nature of the H-1B program, many employers are turning to an alternative and infrequently utilized hybrid visa, the “B-1 in lieu of H-1B,” to obtain professionals with specialized skills.

To recap the H-1B visas and the complex process, on April 1 of every calendar year, United States Citizenship & Immigration Services (“USCIS”) affords U.S. employers an opportunity to petition for the non-immigrant specialty occupation employment of foreign nationals under the H-1B visa program. By congressional decree, the H-1B program reserves 65,000 employment visas annually for university-educated workers who hold the professional work experience or educational equivalent of at least a U.S. bachelor’s degree related to the intended U.S. employment position.

In successive years since the Great Recession, the 65,000 visas have been so quickly sought by U.S. employers such that USCIS has instituted a random lottery process to select the 65,000 petitions it will adjudicate from those received. Last year more than 233,000 petitions were received within the first workweek following April 1 for the 65,000 available H-1B visas. Well-based estimates project that more than 300,000 petitions will be received this year.

With such daunting lottery prospects, U.S. employers are revisiting hybrid visa referred to as the “B-1 in lieu of H-1B” visa to alleviate a need for “hands on” professional workers otherwise not available due to the numerically-restricted H-1B visa limits. The “B-1 in lieu of H-1B” visa is its own visa category and not equivalent to a mere B-1 temporary business visitor’s visa which only permits foreign nationals to complete common business transactions, including:

  1. Engage in commercial transactions, which do not involve gainful employment in the United States (such as a merchant who takes orders for goods manufactured abroad)
  2. Negotiate contracts
  3. Consult with business associates
  4. Litigate
  5. Participate in scientific, educational, professional, or business conventions, conferences, or seminars
  6. Undertake independent research

Alternatively, the “B-1 in lieu of H-1B” visa allows a foreign worker, otherwise fulfilling the specialty occupation standard, to bypass USCIS outright and apply for this hybrid visa at the nearest U.S. consulate worldwide. Once issued, the visa permits the foreign national to engage in hands-on work at a U.S. employer’s workplace. Unlike H-1B visa however, the “B-1 in lieu of H-1B” visa is not intended for long-term employment and the U.S. employer benefitting from the visa holder’s work activity cannot pay the foreign national a salary or any remuneration for such work-related activity. Rather, the U.S. employer is only authorized to provide an expense allowance for incidentals.

The “B-1 in lieu of H-1B” visa is a creature of the U.S. Department of State and not USCIS or any congressionally-enacted statute. By consequence, most U.S. employers and immigration practitioners have rarely, if ever, considered use of this hybrid visa. Consequentially, in June 2012, then Secretary of State Clinton issued a cable to all U.S. consulates worldwide instructing U.S. consular officers on the consular considerations that must be taken into consideration upon adjudicating “B-1 in lieu of H-1B” visas. As the cable highlights, the visa applicant’s intended U.S.-based activities should be limited to approximately six months and the applicant must meet the bachelor’s degree requisite as well as seek U.S.-based work responsibilities classifiable only as a “specialty occupation.” Critically as well, at the time of visa processing, the visa applicant must customarily be employed abroad and remain employed by a foreign entity that pays the visa applicant for the services rendered in the U.S. Fulfillment of these basic requisites affords U.S. employers an opportunity to acquire specialty occupation skills in the U.S. outside the cap-limited H-1B visa program.

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