B-1 IN LIEU OF H ANNOTATION VISAS
The Department of State recently issued a cable to all consular posts in order to clarify activities that will permit a B-1 in lieu of H- annotation. Paragraphs 4, 7 and 10 were edited in 9 FAM 41.31, N11, the text of which is produced below as per the DOS cable:
4. APPLICANT MUST ALSO PLAN TO ENGAGE IN H ACTIVITY
An applicant can only be annotated B-1 in lieu of H-1B when they plan to engage in activities that would normally require an H-1B. Similarly, applicants should only be annotated under B-1 in lieu of H-3 in the rare case when the proposed training has a practical component that is permissible in H-3 status.
7. B-1 IN LIEU OF H-1B
In order to qualify for B-1 in lieu of H-1B, the consular officer must find that the applicant clearly meets the H-1B requirements, and is clearly an employee of the overseas company. The activities must be H-1B caliber, that is, the activities must meet the definition of “Specialty Occupation, in that it requires a bachelor’s degree or equivalent, and the applicant must clearly have a bachelor’s degree or equivalent experience. If the H-1B caliber of the activities cannot be clearly established to the satisfaction of the consular officer, then the applicant must file a petition for an H-1B with USCIS. Further, the applicant must clearly be an employee of the overseas firm, and paid by the overseas firm. It may be more difficult for a new hire to establish their employment status with the overseas firm if they are immediately send to the US to engage in H-1B caliber activity.
10. B-1 IN LIEU OF H-3
In order to qualify for B-1 in lieu of H-3, the consular officer must find that the applicant clearly meets the H-3 requirements for a trainee, and is clearly an employee of the overseas company. A training program designed to train aliens to work in the US is not an appropriate H-3 training program. The regulatory criteria for an H-3 petition approval can be found at 9 FAM 41.54 N4.5-1. Further, the Applicant must be able to describe the training, and the consular officer normally will require documentation of the training provided by the employer. If the applicant cannot clearly establish these requirements, then they must file an H-3 petition with USCIS.
Thus, in order to qualify for a B-1 in lieu of H-1B, the Applicant must overcome the presumption of immigrant intent, be employed and paid by an overseas firm, and plan to engage in H-1B caliber activity for a temporary period, normally less than 6 months in duration.
Additionally, in order to qualify for a B-1 in lieu of H-3, the Applicant must overcome the 214(B) presumption of immigrant intent, clearly be employed and paid by an overseas firm, and generally plan to engage in H-3 activity for generally less than 6 months