B-1 Visa

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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).

I. B-1 VISA
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).
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.
III. B-1 WORKERS IN THE U.S. – DATA
The U.S. government keeps track of individuals who are issued B-1 visas and admitted to the United States in the B-1 visa category.  However, neither the U.S. State Department nor the U.S. Department of Homeland Security breaks down that information with respect to the particular B-1 subclasses that authorize employment.  For example, from available information, it is impossible to know the number of domestic workers or trainees who have received B-1 visas.  There is no information on where they come from, or their age, or gender. Likewise, there is no available data on the number of individuals with B-1 in lieu of H-1B visas, or other demographic information.  Because the U.S. Department of Labor has no role in either of these three B-1 subclasses, that agency does not have any data pertaining to the program either.  Furthermore, no federal agency publishes information about employers of B-1 workers.  
 
 
A. Number of B-1 Visitors in the U.S.
The number of new B-1 visas issued annually has steadily declined over the last ten years, from 75,642 in 2002 to 35,341 in 2012.93
 

 
1. U.S. Department of Homeland Security
The U.S. Department of Homeland Security has two sub agencies that may be involved in the B-1 program and thus may be sources of data. At the border or port of entry, the U.S. Customs and Border Patrol (CBP) interviews workers who have received B-1 visas, decides whether to grant their admission, and issues the electronic I-94.  These admissions are tracked and data is published annually. Unlike certain other nonimmigrant work visa programs, the U.S. Citizenship and Immigration Services (USCIS) has no role prior to the issuance of a B-1 visa.  USCIS is involved, however, when the B-1 domestic worker applies for her Employment Authorization Document after her arrival, or when any B-1 visa holder applies for an extension of the visa.  While USCIS publishes information on EAD applications and extensions generally, the information is not disaggregated by nonimmigrant visa category. 
 
a) U.S. Customs and Border Patrol - admissions
DHS annually publishes the number of admissions of individuals with B-1 visas.94  In 2012, there were 2,972,355 admission events for individuals with a B-1 visa.95 This number is much higher than the number of B-1 visas issued by the U.S. State Department for two reasons.  First of all, each time a nonimmigrant worker enters the United States, CBP counts the entry as an admission. That is, one single individual could be counted many times if they are admitted more than once.  More importantly, however, the B-1 admissions numbers include individuals who are issued B-1 visas as well as individuals who are issued a combination B-1/B-2 visa.  DHS does not have a category for the combined B-1/B-2 visa.  Instead, the CBP inspector will decide whether to count the individual as either a B-1 business visitor or a B-2 tourist depending on questioning at the port of entry.96
 
 
 
 
B. National Origin
The Philippines was the largest sending country for B-1 visas in 2012, followed by Mexico, Venezuela, Brazil and Cuba.99  However, because the B-1 visa is not broken down into subclasses, this information tells us nothing about the nationality of individuals who are working with B-1 visas.
 
Based on admissions flow, the leading sending countries are Mexico, China, India, Brazil and South Korea.100 However, in any case, because the B-1 visa is not broken down into subclasses, this information tells us nothing about the nationality of individuals who are working with B-1 visas.
 
 
 
 
IV. B-1 WORKERS’ RIGHTS
There are no regulations setting out protections for workers who are present in the United States with a B-1 visa.  This makes sense because that the B-1 visa is not supposed to be for work.  However, given that B-1 domestic workers, by definition, are working, there are at least some protections outlined in the U.S. State Department’s Foreign Affairs Manual (FAM).102 The FAM requires individuals applying for a B-1 visa to work in the U.S. as a domestic worker to already have a signed employment contract with their employer; this is a prerequisite for the visa.103 The required employment contract terms depend on the immigration status of the B-1 domestic worker’s employer and his or her expected duration of stay in the United States.104 Nevertheless, in all cases, the B-1 domestic worker’s contract must specify that the wage paid will be the higher of the minimum or the prevailing wage.105 The consular officer reviewing the domestic worker’s B-1 visa application is the only government official in the position to make sure that the contract exists and complies with the FAM’s requirements. While the FAM itself is not enforceable in court, the B-1 domestic worker may bring a legal action in court to enforce the employment contract’s terms if the employer does not comply with them. There are no protections in the FAM for either trainees and high-skilled workers who have a B-1 visa in lieu of H designation.  
 
As with any workers in the United States, individuals with a B-1 visa have rights under any federal and state employment statutes and common laws that may apply, including the Fair Labor Standards Act, the Age Discrimination Employment Act, the Civil Rights Act, the Trafficking Victims Protection Act, the Racketeer Influenced Corrupt Organizations Act, and state wage and hour and discrimination laws.  Whether certain laws apply to specific nonimmigrant workers will depend on the facts of each particular situation.106
 
 
A. Special Protections For B-1 Domestic Workers 
In order to qualify for a B-1 domestic worker visa, the applicant must possess an employment contract dated and signed by both the employer and the worker.107  The rules about what terms must be included vary slightly depending on whether the employer is a U.S. citizen or a nonimmigrant.  U.S. citizen employers who are going to be stationed in the United States for a temporary work assignment, perhaps for a longer term, have extra requirements. 
 
 
1. U.S. Citizen employers
The required employment contract must guarantee that the employer will pay either the minimum or prevailing wage, whichever is greater, for an eight hour work-day.108 Moreover, the employment contract must include any other benefits “normally required for U.S. domestic workers in the area of employment.”109  Furthermore, the employer must provide at least two weeks’ notice before ending the work contract.  However, the worker is not required to provide such notice of intent to leave the employment.
 
a) USC employers who are on temporary assignment in the United States have added requirements
U.S. citizen employers who are on a temporary work assignment in the United States – rather than merely visiting the U.S. for pleasure - have two additional requirements.110  Their domestic workers’ employment contracts must specify that the employer will provide free room and board and free round trip airfare.111  Also, the contract must state that the worker will only work for that employer.112
 
2. Nonimmigrant employers
When the B-1 domestic worker’s employer is a nonimmigrant, their contract must guarantee payment of the greater of the applicable minimum or prevailing wage.113  The employer must provide free room and board and pay for the worker’s initial travel expenses to the United States, and subsequently to the employer’s onward assignment, or to the worker’s country of normal residence at the end of the assignment.114 The contract must state that the worker will only work for that employer.115
 
 
 
 
3. Domestic Workers and the Fair Labor Standards Act
All domestic workers are generally entitled to an hourly minimum wage and protection from retaliation under the Fair Labor Standards Act (FLSA).116  However, the federal wage law’s overtime provisions do not apply to domestic workers who live in the employer’s household.117
 
a) Counting the hours worked
Employers do not have to keep track of the number of actual hours worked by live-in domestic workers.118 Rather, the employer must maintain a copy of any agreement or employment contract and indicate that the actual work time generally coincides with it.119  FLSA regulations do require employers to keep a separate record with the actual hours worked by in-home employees when there is a “significant deviation from the initial agreement.”120
 
The amount of sleeping time, mealtime and other periods of complete freedom from all work tasks is generally not included as time worked.  Employers do not have to pay for the domestic worker’s free time when it is sufficiently long enough for the worker to make effective personal use of the time.  However, if such time is spent on-call and subject to interruptions for work, employers must pay for the entire time.121
 
 
 
 
B. B-1 Trainees and the Fair Labor Standards Act 
The fact that an individual in the United States as a B-1 trainee does not preclude treatment as an employee under the Fair Labor Standards Act (FLSA).126  Internships and training programs in the for-profit private sector almost always amount to employment under the FLSA and therefore must be paid according to its minimum wage and overtime provisions.  Under the FLSA, an “employee” is “any individual employed by an employer.”127  “Employ” means “suffer or permit to work.”128  Therefore, all individuals who are “suffered or permitted” to work must be compensated for the services they provide for their employer.  This definition is very broad.  
 
 
 
 
  • 102. The Foreign Affairs Manual is the organizational directive for the U.S. State Department. Chapter 9, entitled Visas provides guidance to consular officials who issue the visas but is not binding or enforceable in and of itself. See U.S. State Department, Foreign Affairs Manual, available at http://www.state.gov/m/a/dir/regs/fam/index.htm (last visited November 2013).
  • 103. 9 FAM 41.31 N9.3.
  • 104. Id.
  • 105. Id.
  • 106. The relevancy of a plaintiff’s immigration status to remedies available under substantive employment laws is nuanced and has been widely discussed elsewhere. See, eg., Kati L. Griffith, Undocumented Workers: Crossing the Borders of Immigration and Workplace Law, 21 CORNELL J.L. & PUBL. POL’Y 611, 615-26 (2012) (comprehensively outlining the “pressing need for a more integrated understanding of the sometimes complementary, sometimes conflict prone, relationship between immigration law and employment policies”); and Kati L. Griffith, U.S. Migrant Worker Law: The Interstices of Immigration Law and Labor and Employment Law, 31 COMP. LAB. L. & POL’Y J 125, 141-155 (2009) (providing background on the intersection of immigration and employment law as they pertain to migrant workers’ rights and specifically the effect of immigration status on what claims and remedies are available).
  • 107. 9 FAM 41.31 N9.3-1 a.(5).
  • 108. 9 FAM 41.31 N9.3-1 b; N9.3-2 b.
  • 109. Id. The FAM does not specify the manner of determining other benefits that are normally required. However, the U.S. Department of Labor would be a source for that information.
  • 110. 9 FAM 41.31 N9.3-2
  • 111. 9 FAM 41.31 N9.3-2 b.
  • 112. Id.
  • 113. 9 FAM 41.31 N9.3-3 a.(4).
  • 114. 9 FAM 41.31 N9.3-3 a.(5).
  • 115. Id.
  • 116. 29 C.F.R. § 552.102(a); see also 29 U.S.C. § 215(a)(3)(protection from retaliation).
  • 117. 29 U.S.C. § 213(b)(21).
  • 118. 29 C.F.R. § 552.102(b).
  • 119. Id.
  • 120. Id.
  • 121. 29 C.F.R. § 785.23.
  • 126. See, e.g., Chellen v. John Pickle Co., Inc., 344 F.Supp. 2d 1278 (N.D. Okla 2004).
  • 127. 29 U.S.C. § 203(e)(1).
  • 128. 29 U.S.C. § 203(g).
V. B-1 ENFORCEMENT
Because there are no worker protection regulations pertaining to B-1 visitors, there is no specific administrative enforcement scheme.   There is no formal complaint procedure and no anti-retaliation protection.  There is no regulatory mechanism to hold B-1 employers liable for lost wages and benefits. Because there is no specific role for the U.S. Department of Labor in the application process, its enforcement authority with regard to B-1 workers is nonexistent unless another federal law applies.  State agencies customarily will have the authority to enforce any state laws that may be implicated. B-1 workers may attempt to enforce their rights in court if there is an employment contract or applicable federal or state statute allowing a private lawsuit. 
 
 
A. U.S. Department of Homeland Security
The U.S. Department of Homeland Security’s (DHS) enforcement role is not directed towards B-1 worker cases in particular.  However, DHS does focus some attention on trafficking, which is an issue for many domestic workers, including those working with a B-1 visa.  For example, DHS runs a project known as the Blue Campaign.  Designed to help combat human trafficking, the awareness campaign includes multi-lingual public service announcements, billboards, newspaper advertisements, victim assistance materials, and indicator cards for law enforcement. DHS also expanded online resources, including social media, and distributed a virtual toolkit to employers in the lodging, transportation, entertainment, agricultural, manufacturing and construction industries.  
 
 
B. Private Litigation
B-1 workers may file a lawsuit to enforce their rights and have their day in court in just like any other U.S. worker, as long as there is a valid claim under U.S. law and the employer is subject to U.S. courts. 
 
1. Access to Counsel
B-1 workers have similar access to counsel issues as other groups of nonimmigrant workers in that lawyers may not be as willing to take their cases due to cultural differences, language barriers, and the often-short duration of work in the United States.  Because B-1 domestic workers are typically low-wage earners, the amount of money owed may be small relative to the cost and complication of transnational litigation.  Furthermore, because usually there is only one domestic worker per household, there is no possibility of collective representation; class action lawsuits are generally more appealing to take on because they yield higher damages awards.  Foreign workers who have a B-1 in lieu of H-1B or H-3 visa may not be as vulnerable as other nonimmigrants that work in isolation or in rural areas.  
 
a) Legal Services lawyers
Federally funded lawyers may represent individuals with an income below a certain financial level (usually 125% of the federal poverty guideline) and only certain classes of immigrants.134   In most cases individuals with B-1 visas will not be eligible for legal services because of these immigration and financial restrictions.  However, there may be an exception if the worker is a victim of domestic violence, human trafficking or another crime.135
VI. B-1 WORKERS IN THE U.S. – ISSUES
Government studies and advocacy reports on B-1 workers are either nonexistent or hard to find.  Examining the extent of labor exploitation in the B-1 program is uncharted territory. Perhaps the most pressing issue is the fact that the U.S. government does not seem to track the use of the B-1 visa for work.  The lack of basic data makes it difficult to analyze the extent to which these subclasses are utilized by businesses to fill their labor needs, not to mention the issues faced by workers.  Indeed, transparency is needed to examine the potential for visa fraud as well as labor exploitation. This is especially troubling with regard to B-1 domestic workers, given documented abuse of domestic workers generally.  With B-1 in lieu of H-3 trainees, the primary concern is gross underpayment of wages.  With the B-1 in lieu of H-1B subclass, the primary concern stems from the fact that the workers are not paid at a level commensurate with their H-1B or American counterparts, because there are no wage requirements, and the possible misuse of the program to displace U.S. workers.  
 
 
A. Little-Known B-1 Domestic Workers Vulnerable to Abuse 
The fact that there is so little information available about the B-1 domestic worker program adds to their vulnerability.  Neither the number of B-1 domestic workers nor their nationality is published.  While there have been some accounts of B-1 domestic workers who have suffered as victims of human trafficking, the issue has not been widely studied.136   
 
B. Worker Exploitation 
The lack of any worker protections, government oversight, or transparency in the B-1 trainee program creates circumstances allowing for severe worker exploitation and even human trafficking.137 Even though B-1 visas were not designed to allow productive work in the U.S., and B-1 trainees are not supposed to be engaging in productive work for an employer, the reality is often starkly different.  Any program that potentially allows work but does not require a certain wage is problematic.  There is great potential for unchecked misrepresentations especially when international recruitment is involved.
 
1. Case example: John Pickle Co.
One case highlights the B-1 visa’s potential for severe worker abuse.138  In 2001 a U.S. company, John Pickle Co. (“Pickle”) recruited several dozen Indian workers to work in their Oklahoma manufacturing plant as B-1 trainees in anticipation of eventual employment at a newly created operation in Kuwait.139 Pickle contracted with an Indian company to recruit the workers, handle their visa applications, and pay the workers while they were being “trained” in the United States.140  The workers, however, were led to believe that they would be working only in the United States and paid large sums of money for the opportunity.141 The Indian recruiter promised the workers free room and board, medical insurance, at least two years of employment, initial wages of $650 per month plus overtime, which would be increased to $1,200 per month after 18 months. Pickle himself traveled to India and with the contractor, confirmed the terms of work in the United States adding that the workers would be afforded “promised amenities according to American standards.”142 When inconsistencies during the visa application process arose, the foreign recruiter brushed aside any concerns.143
 
Upon their arrival in Oklahoma, the workers’ immigration documents were confiscated.144 They were required to eat and sleep at the dormitory at the manufacturing plant. Armed guards restricted the workers’ ability to leave the facility. They received between $2.89 and $3.17 per hour for their work as welders, pipe fitters, and roll/brake operators at Pickle’s steel fabrication plant.145 The workers received their wages via direct deposit from the Indian contractor, who received the money for wages from Pickle.146
 
Several of the workers escaped and were identified by the U.S. government as victims of human trafficking.147 In the lawsuit that followed, the workers alleged wage violations of the Fair Labor Standards Act (FLSA), national origin discrimination under the Civil Rights Act, and several claims under state common law (false imprisonment, etc.).148 The judge found that Pickle owed the workers more than $1.24 million dollars in back wages and damages for their suffering.149 Prior to reaching this decision, the judge found that the Indian workers were “employees,” rather than trainees under the FLSA, in part because the employer controlled almost every aspect of their work and intended to create a competitive advantage and profit for itself by hiring the Indians, who possessed specialized skills, at low wages, for productive work to fill the needs of customers and generate income for a business.150
 
C. Visa Fraud
The lack of government oversight and transparency in the B-1 in lieu of H-1B program creates a situation ripe for fraud.  B-1 visas were not designed to allow productive work in the U.S. Indeed, the B-1 in lieu of H-1B visa is supposed to be for individuals who are already employed by the foreign company and are only in the United States for a short time.  However, because it is oftentimes much cheaper to hire a foreign worker earning foreign wages, there is a great incentive to take advantage of the B-1 in lieu of H-1B program and use it to staff a company.151 Within the information technology specifically, foreign job contractors have long provided engineers to U.S. employers for foreign wages.152 In some cases, using the B-1 visa for high skilled workers is fraudulent.
 
1. Case example: Infosys
In October 2013, federal prosecutors reached a record $34 million settlement with Infosys after a two year visa fraud investigation. The U.S. government found that the information technology company hired workers with B-1 visas to avoid the higher costs of the H-1B visa program, which gave it an unfair competitive edge and undercut U.S. workers.153 The case began in 2011, when a manager working for Infosys in the U.S. filed a whistleblower lawsuit against Infosys alleging the company retaliated against him for identifying potential visa fraud.154  Infosys is one of the top H-1B-users.  Its U.S. workforce is mostly comprised of nonimmigrant workers from India and provides on-site information technology consulting to corporate clients on a temporary basis.155 The whistleblower claimed that Infosys aimed to boost profits by importing foreign workers with B-1 visas instead of H-1B visas, which require adherence to strict worker protection rules.156 Infosys farmed out its B-1 workers to clients such as Wal-Mart, Goldman Sachs, American Express and Johnson Control.157
 
The whistleblower’s congressional testimony explained how Infosys paid the Indian B-1 workers a stipend of $15,000 per year, which is the salary they received in India, rather than the U.S. prevailing wage of $65,000 that would have been required under H-1B prevailing wage rules. In order to help disguise Infosys’ scheme from U.S. immigration authorities, the company created an internal website of “do’s and don’ts,” including specific written warnings such as not to “mention activities like implementation, design and testing, consulting, etc., which sound like work.”158
 
The court dismissed the manager’s retaliation lawsuit under Alabama state employment law, without passing judgment on whether the company had in fact committed visa fraud.159 Another whistleblower complaint regarding visa fraud at Infosys was filed in 2012.160 That separate case was resolved through mediation that same year.161
 
  • 136. D. North, Proposal: Let's Look at All the Foreign Worker Programs as a Whole, Center for Immigration Studies (June 7, 2012), available at http://www.cis.org/north/proposal-lets-look-all-foreign-worker-programs-....
  • 137. Michael A. Scaperlanda, Human Trafficking in the Heartland: Greed, Visa Fraud, and the Saga of 53 Indian Nationals “Enslaved” by a Tulsa Company, 1 Loy. U. Chi. Int’l L. Rev. 219, 238-243 (2004) (offering a detailed explaination of how misuse of B-1 in lieu of H-3 trainee visa effectuates trafficking).
  • 138. Chellen v. John Pickle Company, Inc., 344 F. Supp. 2d 1278 (N.D. Okla. 2004) (Chellen I).
  • 139. Id. at 1280-81. The company had previously trained foreign workers in the United States and then used them to launch their Middle East business venture. The employer indicated that “the training program was also a “good deal” for JPC because the trainees provided “cheap labor.” While court documents apparently do not clarify whether the workers received B-1 or B-2 visas, it seems unlikely that they would have been B-2 visas because they are for tourists and by all accounts, the visa applications were clear these workers were being imported for training.
  • 140. Id.
  • 141. Id. 1280-82. The workers did not believe they were being hired for a training program and invested large sums of money and left professional jobs in India for the opportunity.
  • 142. Id.
  • 143. Id.
  • 144. Id. The employer’s wife took the passports, visas, return-trip airline tickets, and I–94s and placed them in a safe.
  • 145. Id.
  • 146. Id. The U.S. employer set up separate bank accounts for each worker and the Indian recruiter deposited money into these accounts. The U.S. employer reimbursed the Indian company for payment of the workers’ salaries via a series of monthly wire-transfers set forth in a written agreement that was to be in effect for two years.
  • 147. Several of the workers received T-visas, available for victims of human trafficking. See 8 U.S.C. § 1101(a)(15)(T). The workers did not bring claims under the Trafficking Victims Protection Act, 22 U.S.C. §§ 7101, et seq.
  • 148. Chellen I, 344 F. Supp. 2d at 1279.
  • 149. Chellen v. John Pickle Co., Inc., 446 F. Supp. 2d 1247, 1294 (N.D. Okla, 2006) (Chellen II).
  • 150. Chellen I, 344 F. Supp. 2d at 1287-92 (relying on factors enumerated in Reich v. Parker Fire Protection District, 992 F.2d 1023, 1026 (10th Cir.1993) (quoting the Wage & Hour Manual (BNA) 91:416 (1975)).
  • 151. See, e.g., D. Papademetrious and S. Yale-Loehr, Balancing Interests: Rethinking U.S. Selection of Skilled Immigrants, at 173 (1996) (“The B-1 temporary business category is generally fine in concept, as it facilitates international commerce and trade . . . . however, the B-1 in lieu of H-1B concept raises some concerns. . . . Abuses of the B-1 visa category should be controlled through better regulations and more active enforcement. . . .”).
  • 152. See, e.g., J. Gentry and K. Kennedy-Luczak, HR how-to: foreign workers: everything you need to know about employing foreign workers, at 47 (2004) (citing “[a]buse of the ‘B-1 in lieu of H-1B policy by foreign job contractors providing computer engineers to U.S. employers under a consulting agreement”).
  • 153. J. Preson, Deal Reached in Inquiry into Visa Fraud at Tech Giant, The New York Times (October 30, 2013), available at http://www.nytimes.com/2013/10/30/us/indian-tech-giant-infosys-said-to-r... P. Thibodeau, Infosys ran 'unlawful' visa scheme, U.S. alleges in settlement, Computerworld (October 30, 2013), available at http://www.computerworld.com/s/article/9243672/Infosys_ran_unlawful_visa....
  • 154. The initial case was filed in Alabama state court but was thereafter removed to federal court. For background of Palmer’s case and connection to the October 2013 settlement, see The Economic Times, Infosys whistleblower could get $5-8 mn from settlement (Oct. 31, 2013), available at http://articles.economictimes.indiatimes.com/2013-10-31/news/43561373_1_....
  • 155. For a U.S. worker’s perspective of Infosys’s hiring practices, see Koehler v. Infosys, Class Action Complaint, Case No. 2:13-cv-00885 (E.D. Wis., filed Aug. 1, 2013) (Alleging that out of 15,000 U.S. employees, 90% are of South Asian descent), available at http://www.pbclaw.com/2013/08/02/proposed-class-action-complaint-filed-a....
  • 156. J. Preston and V. Bajaj, Indian Company Under Scrutiny Over U.S. Visas, The New York Times, (June 21, 2011) available at http://www.nytimes.com/2011/06/22/us/22infosys.html?pagewanted=all.
  • 157. M. Bahree and M. Jordan, Infosys Employee Testifies on Alleged Visa Fraud, The Wall Street Journal, (July 28, 2011) available at http://blogs.wsj.com/indiarealtime/2011/07/28/infosys-employee-testifies....
  • 158. One document uncovered states: “DO NOT TELL THEM YOUR [sic] WORKING.” See D. Rather, Huffington Post, Visa Loophole, (March 25, 2011) available at http://www.huffingtonpost.com/dan-rather/business-visitor-visa-fraud_b_8....
  • 159. J. Preston, Judge Dismisses Whistle-Blower Suit Against Infosys, The New York Times (August 20, 2012), available at http://www.nytimes.com/2012/08/21/us/alabama-judge-dismisses-infosys-whi....
  • 160. P. Thibodeau, Infosys faces new visa fraud allegation, Computerworld (August 9, 2012), available at http://www.computerworld.com/s/article/9230100/Infosys_faces_new_visa_fr....
  • 161. D. Thoppil, Infosys Settles Harassment Suit With Former Employee, Wall Street Journal (Dec. 14, 2012), available at http://online.wsj.com/article/SB1000142412788732398150457817895356764186... Tripuraneni vs Infosys case settled, Deccan Herald (Dec. 14, 2012), available at http://www.deccanherald.com/content/298586/tripuraneni-vs-infosys-case-s....

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