B-1 visa for business visitors: Permissible activities – Part II

This is the concluding part of a series of articles on Permissible Activities under the B-1 Visa for Business Visitors.

B-1in lieu of H-1B (BILOH) criteria

In addition to the standard B-1 parameters outlined in the first part of the article, the Business entities should adhere to the following additional guidelines when identifying employees who may qualify for admission in the B-1 in lieu of H-1B classification:

H-1B qualifications

•· The foreign national must demonstrate that he or she will perform services in a specialty occupation and that he or she possesses a bachelor’s degree or equivalent that is related to the activities to be performed.

Overseas employment and source of salary

•· As noted above, the individual must remain on foreign payroll throughout the US stay and may not receive remuneration from a U.S. source other than an expense allowance or expense reimbursement.

•· Note that fee payments, charge-backs, or other reimbursement of the foreign national’s salary during the BILOH (B-1 in lieu of H-1B) assignment should be carefully considered as consulates will scrutinize visa applications for any indication that the overseas employer is a job shop or placement agency or that the US host will otherwise use the foreign national to supplement its local workforce. However, legitimate billing arrangements that do not implicate dollar-for-dollar reimbursement of labor costs should be acceptable.

Nature of activities

•· As noted above, the foreign national must not engage in any activity that constitutes local employment or labor for hire that could be performed by a US worker. Although DOS regulations and the FAM state that a foreign national may use BILOH to perform H-1B “services,” the nature of the foreign national’s activities should be carefully reviewed for characteristics that could lead to a conclusion that they are labor for hire.

Temporary nature of the stay

•· In BILOH situations, stays of no more than four to six months are recommended. Longer durations may lead to a determination that the individual is entering the US to engage in labor for hire and will no longer be under the supervision of the foreign employer. Note that, even where a longer duration is requested, a border officer may elect to admit the foreign national for a period of no more than 90 days.

Previous BILOH stays

•· If the foreign national has recently completed a BILOH stay, he or she should not seek immediate reapplications for the classification. Consulates have indicated that there should be a significant time gap between BILOH applications; six to seven months