I. B-1 VISA

The B-1 business visitor visa is available for a wide variety of business travellers, including domestic workers who are employed by U.S. citizens or nonimmigrants, trainees (B-1 in lieu of H-3), and high-skilled workers employed by foreign companies (B-1 in lieu of H-1B).

The B-1 visa allows foreign nationals to visit the United States on business but generally prohibits work at a U.S. job.1 It is often used by travelers for short-term trips to the U.S. for meetings, conferences or business transactions.  There is no annual cap or numerical limit on the number of B-1 visas available each year. The B-1 visitor is not a work visa, and, generally speaking, foreign workers may not use it to come to the U.S. to perform skilled or unskilled labor.2 However, the B-1 visa is ill defined and frequently used by foreign workers who come to the U.S. to represent a foreign business.3 Indeed, there are several subclasses of business visitors who may perform work in the United States.4 Among the type of individuals who may work on a B-1 visa are domestic workers employed by either U.S. citizens who reside abroad or other nonimmigrants, trainees, and some high-skilled temporary workers who are paid by their foreign employer.5 B-1 domestic workers are required to have an employment contract and a required wage as a prerequisite to getting the visa.6 B-1 trainees and workers with the B-1 in lieu of H-1B distinction, however, are not.  None of the B-1 subclasses require the employer to submit a labor certification application or otherwise obtain approval from either the U.S. Department of Labor or the U.S. Department of Homeland Security.7 Even courts have noted that business visitor visas are obtained through a faster and less scrutinized process than the H visas for temporary work or training.8 Moreover, there are no regulations or procedures in place to address or prevent the displacement of U.S. workers.
 
The number of individuals who are working with B-1 visas is unknown.  The government maintains information on the number and nationality of individuals receiving B-1 visas and the number of B-1 visa holders who actually enter the United States.  But those numbers are meaningless because, presumably, the vast majority of B-1 visa holders do not work. Nevertheless, the number of B-1 visas issued is not broken down by subclasses that allow work, or any other specific measure, such as industry or occupation.  Indeed, publicly available information does not reveal how many B-1 visa holders work, where they work, for what purpose, and for how long.  Government officials have in the past indicated that up to 20,000 of the B-1 visas issued annually enable visa holders to engage in paid work.9 The lack of concrete data on these subclasses allowing work is significant considering that each year there are over 35,000 B-1 visas issued and over 3 million B-1 admissions. 
 
 
 
 
 
 
 
 
 
 
A. B-1 Domestic Workers
B-1 nonimmigrant visas are available for certain domestic workers.22 U.S. citizens who reside abroad and are visiting the U.S. temporarily, whether for work or pleasure, may employ foreign domestic workers with the B-1 visa.23  Nonimmigrants may also employ foreign domestic workers in the United States.24 All B-1 domestic workers must have the intent to return to their home country after their U.S. stay and have a signed employment contract with required terms that depend on whether their employer is a U.S. citizen or themselves a nonimmigrant.25 All B-1 domestic workers should be paid the higher of the minimum or prevailing wage.26 Unlike other B-1 visa holders that work in the U.S., domestic workers may receive payment from a U.S.-based employer.27 In order to qualify for the visa, the domestic worker must have been employed abroad by the U.S. citizen or nonimmigrant employer previously, or the employer must show regular employment of any domestic worker abroad, and the B-1 domestic worker applicant must have a certain amount of experience.28 An employment contract is also required for these workers.29 However, the B-1 visa itself does not authorize employment.  Rather, the visa enables the worker to apply for an Employment Authorization Document (EADs) from the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services once the worker is in the United States.  The numbers and nationality of individuals receiving B-1 domestic worker visas are not published and their admissions are not tracked. The numbers of B-1 domestic workers who apply for and receive EADs is also not published.30
 
 
1. Duration
Consular officials set the duration of a B-1 domestic worker visa based on the employer’s stay in the United States.31 The initial time may exceed one year as long as the stay “is not indefinite in nature.”32  Indeed, the State Department contemplates a longer stay for certain B-1 domestic workers who are employed by U.S. citizens temporarily stationed in the United States for up to 4 years.33  B-1 visas generally are valid for up to one year with the possibility of extension in six-month increments.34 There is no specified limit to the number of extensions a B-1 domestic worker may receive.  
 
B. B-1 Trainees in Lieu of H-3
B-1 visitor visas for business are also available for individuals who need training in the United States and who would otherwise qualify for the H-3 visa.35 The trainee must have nonimmigrant intent and be clearly employed and paid by a foreign company.  The training program must not be available in the trainee’s home country and the training program generally must be less than six months in duration. Productive work in the United States is allowed if it is incidental to the training itself and if the trainee remains an employee of an overseas company and is paid from a source abroad.36  Furthermore, the trainee should not be placed in a position normally occupied by U.S. workers.  Unlike B-1 domestic workers, no employment contract is required for the B-1 in lieu of H-3 subclass and no prevailing wage is required, i.e. they are paid the regular wages in their home country while being trained in the United States.37 The B-1 visa is not intended to be a way to avoid the more time-consuming H-3 visa process.  There is no limit to the number of B-1 visas.  Neither the U.S. State Department nor the U.S. Department of Homeland Security publishes the number of B-1 in lieu of H-3 visas issued or the nationality of these workers. 
 
 
1. Duration
Immigration regulations state that B-1 visas are initially valid for up to one year with the possibility of six-month extensions.38 With regard to the B-1 in lieu of H-3 visa in particular, however, the U.S. State Department, however, advises that the duration of the B-1 in lieu of H-3 visa should generally be for less than six months.39 However, some practitioners comment that intended stays of more than two weeks will face additional scrutiny during the visa application process.40 Even so, there is no regulation or guidance prohibiting extensions.  And there is no apparent limit to the number of possible extensions or maximum duration for visas in this subclass.   
 
 
 
 
C. B-1 Skilled Workers in Lieu of H-1B
B-1 visas are also available for workers in specialized jobs who would otherwise qualify for the H-1B visa and whom a foreign employer pays.  They are not intended to displace U.S. workers or to be a way to avoid the more regulated H-1B visa.  They are intended to allow foreign nationals who are employed by foreign companies to work temporarily in the United States.  Such work often includes performing tasks for U.S. employers who have business relationships with the foreign employer.  Unlike B-1 domestic workers, no employment contract is required for the B-1 in lieu of H-1B subclass. Some business immigration lawyers describe it as a flexible choice for international employers who want to avoid the complex and costly H-1B visa process.62 For example, unlike the H-1B program, there is no limit to B-1 visas and employers are not required to meet any prevailing wage requirements.  Neither the U.S. State Department nor the U.S. Department of Homeland Security publishes the number of B-1 in lieu of H-1B visas issued or the nationality of these workers. 
 
 
1. Duration
B-1 visas generally are only valid for up to one year with the possibility of six-month extensions.63 The duration of the initial B-1 in lieu of H-1B visa should be less than six months.64 There is no regulation or guidance prohibiting extensions.  Apparently, there is no limit to the number of possible extensions or maximum duration for visas in this subclass.   
 
 
 
 
  • 1. 8 U.S.C. § 1101(a)(15)(B) (a B-1 applicant may not enter the U.S. “for the purpose of . . . performing skilled or unskilled labor”); 22 C.F.R. § 41.31 (a B-1 visa holder may not engage in “local employment or labor for hire”); 9 FAM 41.31 N7(a) (B-1 is not appropriate for “obtaining and engaging in employment” while in the U.S.).
  • 2. Id.
  • 3. M. Jaidi, The Many Legitimate Uses of the B-1 Visa, (April 24, 2011) and C. Mehta and O. Thuma, Analyzing the “B-1” Business Visa, (July 5, 2004), both available at http://www.cyrusmehta.com/News.aspx?SubIdx=ocyrus201142475017&Month=&Fro... (last visited August 2013).
  • 4. 9 FAM 41.31.
  • 5. There are numerous other subclasses of B-1 visitors for business which may involve work in the United States. See generally 9 FAM 41.31 Notes. Some examples of these subclasses include professional athletes (9 FAM 41.31 N9.4), foreign airline employees (9 FAM 41.31 10.2), and artists (9 FAM 41.31 11.10).
  • 6. 9 FAM 41.31 N9.3.
  • 7. Compare the H visa programs which require approval from both.
  • 8. Chellen v. John Pickle Co., Inc., 344 F. Supp. 2d 1278, 1282 (N.D. Okla. 2004).
  • 9. A. Sukthankar, Global Workers Justice Alliance, Visas, Inc.: Corporate Control and Policy Incoherence in the U.S. Foreign Labor System, p. 11, fn 5 (2012).
  • 22. U.S. State Department, Visitor Visas for Personal or Domestic Employees, available at http://travel.state.gov/visa/temp/types/types_1262.html (August 2013).
  • 23. 9 FAM 41.31 N9.3-2.
  • 24. 9 FAM 41.31 N9.3-3. Nonimmigrants with a B, E, F, H, I, J, L, M, O, P or Q visa are eligible to employ B-1 domestic workers. Legal permanent residents (individuals with a green card), may not employ B-1 domestic workers because by definition they are residing in the U.S. permanently. The B-1 domestic worker visa is meant to be temporary. Cite.
  • 25. 9 FAM 41.31 N9.3-1 a.(5).
  • 26. 9 FAM 41.31 N9.3-1 b; N9.3-2 b.; N9.3-3 a.(4).
  • 27. 9 FAM 41.31 N9.3-5 (source of payment to a B-1 personal or domestic employee or the place where the payment is made or the location of the bank is not relevant).
  • 28. 9 FAM 41.31 N9.3-2 and 9.3-3.
  • 29. 9 FAM 41.31 N9.3.
  • 30. This information may be available through a Freedom of Information Act request directed to the U.S. Citizenship and Immigration Services (USCIS). While the application for an Employment Authorization Document, requires the nonimmigrant to list their visa staus, it may or may not be broken down into the particular B-1 subclass. USCIS does require B-1 domestic workers who apply for extensions on Form I-539 to break down their subclass.
  • 31. 9 FAM 41.112 N2.8, 41.31 N14.4.
  • 32. 9 FAM 41.31 N3.1.
  • 33. 9 FAM 41.31 N9.3-2 b.
  • 34. C. Miller, Ed., U.S. Department of Homeland Security, U.S. Customs and Border Protection Inspector’s Field Manual, at 47, (2008) available at http://www.ilw.com/immigrationdaily/news/2008,0513-cbp.pdf.
  • 35. 9 FAM 41.31 N11.9; 9 FAM 41.53 N4.5; 8 C.F.R. 214.2(h)(7); U.S. State Department, B-1 in Lieu of H, Unclassified Cable 12 State 101466 (Oct. 12, 2012).
  • 36. U.S. State Department, B-1 in Lieu of H, Unclassified Cable 12 State 101466 (Oct. 12, 2012).
  • 37. However, B-1 trainees may be entitled to the minimum wage under the Fair Labor Standards act if in reality they are employees engaging in productive work in the United States. See Chellen v. Pickle, 344 F.Supp. 2d 1278 (N.D. Okla 2004).
  • 38. 8 C.F.R. § 214.2(b)(1); C. Miller, Ed., U.S. Department of Homeland Security, U.S. Customs and Border Protection Inspector’s Field Manual, 2008 at 47, available at http://www.ilw.com/immigrationdaily/news/2008,0513-cbp.pdf.
  • 39. U.S. State Department, B-1 in Lieu of H, Unclassified Cable 12 State 101466 (Oct. 12, 2012).
  • 40. See, e.g., Fragomen India 2012, U.S. Visa Adjudication Trends B-1, L-1, H-1B, available at http://fragomenindia2012.com/Downloads/Fragomen-India-Symposium-2012-US-...
  • 62. See, e.g., C. Mehta and M. Jaidi, B-1 in Lieu of H-1B Visa in Jeopardy: Don’t Throw the Baby Out with the Bathwater, (May 26, 2011) available at http://cyrusmehta.blogspot.com/2011/05/b-1-in-lieu-of-h-1b-visa-in-jeopa... see also Murphy Law Firm, News Brief: B-1 in Lieu of H-1B – Will this Useful Category Survive?, (July 1, 2011) available at http://www.murthy.com/news/n_b1luh1.html.
  • 63. 8 C.F.R. § 214.2(b)(1); C. Miller, Ed., U.S. Department of Homeland Security, U.S. Customs and Border Protection Inspector’s Field Manual, 2008 at 47, available at http://www.ilw.com/immigrationdaily/news/2008,0513-cbp.pdf.
  • 64. U.S. State Department, B-1 in Lieu of H, Unclassified Cable 12 State 101466 (Oct. 12, 2012). However, according to one immigration law firm, the U.S. embassy in London has made changes in the way it issues B-1 in lieu of H-1 visas. Instead of issuing a visa with an annotation specifying “in lieu of H-1” the practice is now to issue a standard ten-year B-1/B-2 visa (where the applicant qualifies) and enter information regarding the applicant’s B-1 in lieu of H-1 status on the applicant’s records, which are available to CBP officers at Ports of Entry. (The Embassy recommends that B-1 in lieu of H-1 applicants take their full set of documents demonstrating their eligibility on each trip to the U.S.), available at http://www.goldsteinvisa.com/r-changes.html (last visited August 2013).

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