II. B-1 HIRING PROCESS

Employers who hire B-1 nonimmigrants do not petition the government for special permission.  Employers are not required to make any application with either the U.S. Department of Labor or the U.S. Department of Homeland Security.  Rather, the workers are hired abroad and apply for the visa through the U.S. embassy or consular post.78 Along with the visa application, the worker must present proof of the eligibility for the visa, and be interviewed personally. Because the U.S. State Department does not report statistics for each particular B-1 subclass, the approval rates for domestic workers, trainees (in lieu of H-3) and skilled workers (in lieu of H-1B) are unknown.  Once the worker has the visa, he travels to the U.S. and presents for admission at the U.S. border or port of entry.  The U.S. Department of Homeland Security’s Customs and Border Protection makes the final decision about whether the individual may enter the United States and for how long he may stay.  B-1 domestic workers must apply for an Employment Authorization Document (EAD) from the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, before they can start work.  B-1 trainees and B-1 in lieu of H-1B workers do not require an EAD, presumably because they are not earning money from within the United States.
 
 
A. Steps for Employers
Employers locate and hire B-1 workers abroad.  There is little information about this process or the extent to which recruiting agencies are involved.  In the case of domestic workers, the employer must sign an employment contract before the worker applies for the visa.  Some employers are required to pay for the domestic worker’s transportation to and from the United States.  Employers of B-1 trainees and B-1 in lieu of H-1B workers are not required to have an employment contract or pay for the worker’s travel to the U.S.  However, to obtain the visa, the worker must show that they are employed by the foreign employer and will continue to be paid by their foreign employer and not from any source in the U.S.  Presumably, the international employer will be assisting, if not handling outright, the B-1 visa application process for their foreign employees. 
 
B. Steps for Workers
The prospective B-1 worker applies for the visa through the U.S. Consulate or embassy abroad.  The first step is to complete the Form DS-160 through an online application and upload a photo.  The fee to apply for a B-1 visa is $160.79 Generally, B-1 applicants must have an interview at the U.S. embassy or consular post abroad. At the interview, the applicant brings a printed out confirmation of the Form DS-160, a receipt that the fee has been paid, their passport, and any additional documents that show eligibility for the visa, including the purpose of the trip and evidence of a temporary stay in the United States. 
 
Applicants must show they are eligible for the visa and bring all supporting documents to the interview.  Domestic workers must present their signed employment contract.80 Individuals applying for B-1 in lieu of H-1B visas should show ongoing work for the overseas employer and clearly show employment with the company or firm abroad.81  If the B-1 applicant is a new employee with the company and their first work assignment is in the U.S., however, it may be difficult to show eligibility for the visa.  The worker must prove that payment will not come from a U.S. employer.82 The job or training pursued in the U.S. must be of type, which would qualify the worker for an H-1B visa.  In other words, it must be a specialty occupation and the worker must have a bachelor’s degree or equivalent experience.  The U.S. Department of Labor has no role in reviewing the job or the applicant.
 
As with other work visas that require nonimmigrant intent, the B-1 applicant must show a permanent residence abroad.83 The consular officer evaluates whether the applicant truly intends to return to his home country after the U.S. stay by examining the nature of the employment abroad, family, social, cultural and economic ties, and evidence of funds to cover expenses.84
 
1. B-1 domestic workers receive anti-trafficking brochure
Consular officers must educate B-1 domestic workers about their basic legal rights under immigration, labor, and employment laws.85 This is accomplished at the time of the visa interview when B-1 domestic workers receive an anti-trafficking brochure prepared by the U.S. State Department. The information describes various work protections and directs aggrieved workers to call 911, a toll-free hotline for victims of trafficking, or the U.S. Department of Justice when there are serious issues.  The State Department must train its consular officers about the labor protections described in the brochure; they must note that it has been received, read, and understood by the applicant.86
 
2. Admission to the United States
A visa does not guarantee admission to the United States.  The U.S. Department of Homeland Security's Customs and Border Protection will either permit or deny entry after their own inspection and will determine the permitted time allowed in the U.S., which may be less time than what is listed on the visa itself.87
 
3. B-1 in lieu of H notation
When the consulate issues the B-1 in lieu of H-3 or H-1B visa, the officers usually mark the visa with a notation “in lieu of H.”88 However, some business immigration lawyers advise that this is not always common practice.89 Apparently, the purpose of the annotation is to facilitate the individual’s admission to the U.S. by giving Customs and Border Patrol a heads up about the visitor’s purpose.90
 
4. B-1 domestic workers need employment authorization document
B-1 domestic workers must obtain an employment authorization document (EAD) prior to starting work for their employer.  Workers must submit Form I-765 to the U.S. Citizenship and Immigration Services (USCIS) along with the filing fee of $380.91 Workers may not apply for the EAD until they are present in the United States and it may take up to several months for USCIS to approve the application. Once the worker receives the EAD, she may apply for a Social Security Number and drivers license.  
 
C. Extension Available Through USCIS
All B-1 visa holders who want to extend their stay in the United States must apply for an extension from USCIS by submitting Form I-539 with the fee of $290.92
  • 78. Short-term business visitors from an authorized group of about 35 countries also can use the Visa Waiver Program without need to obtain a B-1 visa. Different rules apply for citizens of Mexico and Canada.
  • 79. U.S. State Department, Fees for Visa Services, available at http://travel.state.gov/visa/temp/types/types_1263.html (last visited August 2013).
  • 80. 9 FAM 41.31 N9.3.
  • 81. 9 FAM 41.31 N11. A foreign branch or office of a company based in the U.S. may qualify.
  • 82. 9 FAM 41.31 N11.1; U.S. State Department, Consulate General of the U.S., Mumbai, India, Nonimmigrant Visas: B-1 in Lieu of H-1B, available at http://mumbai.usconsulate.gov/b1_in_lieu_of_h1b.html (last visited August 2013). A U.S. company, however, may provide an expense allowance to the B-1 worker.
  • 83. 9 FAM 41.31 N2.
  • 84. 9 FAM 41.31 N3.4; N4.2.
  • 85. 9 FAM 41.31 N9.3-6 a; see also 8 U.S.C. § 1375c(b)(3), William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (WWTVPRA) (including “information on the illegality of slavery, peonage, trafficking in persons, sexual assault, extortion, blackmail, and worker exploitation in the United States.”).
  • 86. Id. Consular officers must add a mandatory case note in the visa applicant computer system stating the pamphlet was provided and the applicant indicated that s/he understood its contents. See also 9 FAM 41.21 N6.5 for information about additional consular officer responsibilities with respect to anti-trafficking measures.
  • 87. 8 U.S.C. §1225; 8 C.F.R. Part 235, Inspection of Persons Applying for Admission; see also Austin T. Fragomen, Jr., Alfred J. Del Rey, Jr., and Sam Bernsen, Immigration Law and Business § 2:11 (2010) (“The issuance of a nonimmigrant visa gives the alien permission to apply for admission to the United States at a port of entry…The visa does not assure an alien that he or she will be admitted to the United States, however; it merely indicates that a consular officer has found the alien eligible for temporary admission to the United States and not inadmissible under § 212(a) of the INA, 8 U.S.C.A. § 1182(a).”).
  • 88. U.S. State Department, B-1 in Lieu of H, Unclassified Cable 12 State 101466 (Oct. 12, 2012) (“These paragraphs were edited in order to clarify activities that will permt a B-1 in lieu of H annotation”).
  • 89. Kehrela Hodkinson, Reggie Pacis and Edward Rios, CBP/Consular Processing Issues, American Immigration Lawyers Association (2012) (noting that “many consular officers are still refusing to annotate” creating “potential issues when the individual arrives at the Port of Entry with an unannotated B-1 and explains that they are coming to work in the U.S.”), available at http://www.ailadownloads.org/seminars/seminar120911resources.pdf (last visited August 2013).
  • 90. Id.
  • 91. U.S. Department of Homeland Security, USCIS, I-765, Application for Employment Authorization, available at http://www.uscis.gov/i-765 (last visited August 2013).
  • 92. See Form I-539 instructions (http://www.uscis.gov/sites/default/files/files/form/i-539instr.pdf). If biometrics (fingerprint) are required, the total fee is $375.

© 2012 | Global Workers Justice Alliance | 789 Washington Ave. Brooklyn, NY 11238 | info@globalworkers.org | (646)351-1160