In the United States, the most common visa used for short-term trips is the B visa. This is a combination of the B-1 visa (for short-term business trips) and the B-2 visa (for short-term tourism/pleasure trips). People on B visas are generally not allowed to engage in productive work or study activities. However, in some cases, B visas can be issued that allow people to engage in some types of productive work and learning activity, in lieu of another visa. The three visa categories, for which a B visa could be issued instead, are the H-1B visa (the primary use case: a temporary visa for skilled workers), H-3 visa (a trainee and special education exchange visitor visa), and J-1 visa (a visa for exchange visitor students and scholars). The U.S. Department of State recommends that consular officers clearly annotate such B visas to make the scope of the visa clear to the applicant and the U.S. Customs and Border Protection officer at the port of entry.
Prior to the September 2001 attacks, the B visa could also be used by people on short courses of study, but now such people need to get a M-1 visa or F-1 visa. However, B visas may still have annotations that allow for transition to student visas through Form I-539.
Not all United States consulates offer B visas in lieu of other visas. The total number of such visas issued is also small: for instance, in 2011, the U.S. Department of State reported that fewer than 1000 B-1 in lieu of H-1B visas were issued annually. Some consulates, such as the Chennai consulate, explicitly listed the B-1 in lieu of H-1B as part of the Business Executive Program until that program was discontinued on April 1, 2015. Some consulates, such as the Mumbai consulate, list the B-1 in lieu of H-1B but not as part of any specific program.
This article discusses these rare uses of the B visa and the rules governing these uses.
Rules and modifications
Inflexible rules
The following rules governing the B visa need to be honored even for B visas issued in lieu of other visas:
The person must not receive compensation from a United States source; however, provision of accommodation or reimbursement of expenses incidental to a temporary stay are allowed. The person's stay must be temporary, both per visit and in terms of the total duration of stay (in case of a multi-entry visa). The person should still enter without immigrant intent or the intent to convert the stay to a long-term stay; for instance, the person should not look for employment in the U.S. job market.
Restrictions on usual B visas that get relaxed
People on usual B visas are allowed to engage in the following activities:
Engaging in commercial transactions, which do not involve gainful employment in the United States (such as a merchant taking orders for goods manufactured abroad) Negotiating contracts Consulting with business associates Litigating a court case Participating in scientific educational, professional, or business conventions, conferences, or seminars Undertaking independent research
B visas issued in lieu of work or trainee visas add to this list of permissible activities the activity of productive work or learning activity in the specific context permitted by the visa. For instance, a B visa issued in lieu of a H-1B for a worker for a non-U.S. company working on a project for a U.S. client allows the worker to engage in productive work activity as part of completion of the project.
Generally, a B visa issued in lieu of any other visa category is strictly more powerful than an ordinary B visa. In particular, all activities permitted under an ordinary B visa are permitted for a B visa in lieu of another visa. In particular, a B visa in lieu of another visa can be used for ordinary business or travel purposes as long as the visa is valid.
Differences in the application criteria and process
For a typical work or exchange visitor visa, there are additional prior steps that need to be taken before the visa application:
For all employer-sponsored nonimmigrant work or trainee visas (in particular, the H-1B visa and H-3 visa), Form I-129 (Petition for a Nonimmigrant Worker) needs to be filed with the United States Citizenship and Immigration Services. For the H-1B visa, a Labor Condition Application needs to be filed with and approved by the U.S. Department of Labor prior to filing Form I-129. The J-1 visa requires a Form DS-2019 to be issued by an appropriate Student and Exchange Visitor Program-certified institution.
Neither of these steps is part of the application process for a B visa in lieu of a work visa. Rather, the application is made directly to the consulate with all the relevant evidence submitted to the consulate.
The following are five criteria that need to be satisfied by work visa applicants and their petitioning employers:
The sponsoring entity (which is the employer in the case of work visas) is a United States entity. (In the case of the H-1B) the employee's wages and working conditions are at or above that of other employees in the company, and hiring the employee will not adversely affect other employees (the precise nature of attestations that need to be made varies based on the visa category and the type of employer). (In the case of the H-1B) the employee will be paid at or above the prevailing wage for that job and intended employment area (this is part of the Labor Condition Application for the H-1B status). The employee is adequately qualified for skilled work. The standard of qualification and the nature of evidence needed varies based on the type of work visa. There is a clear employer-employee relationship. In particular, self-petitions are (generally) not accepted.
The in lieu of visas differ in the following respects:
Criterion (1) gets flipped around: the applicant now needs to demonstrate that the employer is a non-U.S. employer (note that B-1 in lieu of J-1 is a little different; see the section for more). In the case of an employer with no United States presence, this is easy. For multinationals, it is important to show that the applicant is employed and paid by the non-U.S. part of the company. Criterion (2) is no longer applicable, because the employer, being a non-U.S. employer, has no U.S. workforce. Criteria (3), (4), and (5) continue to be required. In particular, criterion (5) means that self-employed people cannot generally use this category.
Importance of having the "in lieu of" annotation at the time of visa issuance
An ordinary B visa cannot be retroactively changed by an applicant or his or her sponsoring company or institution to a B visa in lieu of another visa. Even if a person has an already valid B visa, the person must get a new B visa in lieu of the appropriate visa in order to visit the United States for productive work or study activities. When the person gets this visa, the earlier B visa is cancelled (without prejudice, i.e., in a way that indicates that this was not due to any fault or violation on the part of the applicant) and replaced by the new B visa.
Inapplicability to VWP travel
Most citizens of Visa Waiver Program (VWP) countries are eligible for visa-free travel to the United States for short-term business and tourist trips of the sort that would usually require B visas. However, people entering via the VWP, without a visa, cannot engage in the additional activities permitted for the in lieu of visas. In other words, the VWP mostly substitutes for ordinary B visas, but cannot substitute for B visas in lieu of other visas.
No change of status possible within the United States
Stay on the usual B visa can be extended while in the United States by filing Form I-539 with the United States Citizenship and Immigration Services. Form I-539 cannot be used to change the nature of the B visa to include the "in lieu of" annotation; such changes can only be made at a consulate.
No dependent visa
As with ordinary B visas, there is no visa for dependents of the in lieu of visas. However, the family members of B visa holders can still apply for ordinary B visas and use those to accompany or visit the holder of the in lieu of visa.
History
Original use of B-1 in lieu of H-1
The use of the B visa in lieu of other visas is not mentioned in any legislative statutes. The concept appears to have been first created in the 1960s in a joint effort of the Immigration and Naturalization Services (the predecessor to the U.S. Department of Homeland Security, that carried out all the immigration processing and enforcement functions currently carried out by the branches of the DHS) and the U.S. Department of State.
The first explicit articulation of the "B-1 In Lieu of H-1" category was in a 1982 cable. As of 1982, there was no separate H-1B visa; rather there was a single H-1 category for high-skilled workers (the H-1B in its present form would be created as a result of the Immigration Act of 1990). The cable was in response to Matter of Srinivasan, a case involving the denial of B-1 status to employees of an India-based computer company. The INS determined that the B-1 classification (in lieu of H-1) is appropriate under the following circumstances:
The alien receives no remuneration from a U.S. source The alien is a bona fide nonimmigrant The alien qualifies for H-1 status and will perform duties that "require distinguished merit and ability" The services to be provided are necessary to the integrated international production, marketing, and service system of the corporation, its subsidiaries, and affiliates, and so [does] not involve the reassignment of an alien to an employer in the United States.
Changes in the 1990s
The Immigration Act of 1990 officially split the original H-1 visa into a H-1A visa (for nurses) and H-1B visa (for other categories of skilled workers) and imposed an annual numerical cap on H-1Bs. In 1993, the INS and the U.S. Department of State proposed regulations that, by explicitly listing all permissible uses of B-1 visas, would have eliminated the B-1 in lieu of H-1 category. However, these regulations were never implemented.
Tightening of restrictions on B visa use for study
After the September 11, 2001 attacks, people were no longer permitted to engage in even short courses of study on the B visa. Instead, such people needed to get a M-1 visa or F-1 visa. However, B visas may still have annotations that allow for transition to student status through Form I-539.
However, there is also a H-3 visa, which can be used by trainees (people who have been invited to participate in a training program) and special education exchange visitors. It is possible to receive a B-1 in lieu of H-3. It is also possible to receive a B-1 in lieu of a J-1 visa, but this applies only when the sponsoring entity is the United States government.
Renewed scrutiny in the 2010s
In the aftermath of revelations by whistleblower Palmer about apparently fraudulent immigration practices by multinational company Infosys, there was renewed scrutiny of the B-1 visa. Infosys paid a $34 million settlement to the United States government. Senator Chuck Grassley raised concerns about the use of B-1 in lieu of H-1B, in particular highlighting the lack of protections for United States labor because, unlike H-1B visas, no Labor Condition Application was needed. In response, Cyrus Mehta and Myriam Jaidi, writing for Immigration Daily, noted that there were many work visa categories, such as the L-1 visa and O-1 visa, that did not require a LCA, and the B-1 in lieu of H-1B was not unique in this regard. Immigration lawyer Angelo Paparelli stressed the importance of not jeopardizing the B visa.