The Department of State (DOS) recently responded to an inquiry from Senator Charles Grassley regarding the use of the “B-1 in lieu of H-1B” visa category. Senator Grassley had contacted DOS to express his concerns that the “B-1 in lieu of H-1B” is being fraudulently abused by certain Indian-owned consultancies seeking an “end run” around proper “work visa” categories. Senator Grassley had requested that DOS provide specifics both on the numbers of “B-1 in lieu of H-1B” visas issued, and challenged the legal authority for issuing this type of visa. As part of its response to Senator Grassley, DOS advised that they were working in conjunction with the Department of Homeland Security (DHS) to consider removing or substantially changing the “B-1 in lieu of H-1B” category.

Meanwhile, this visitor visa category was also in the news due to a federal criminal investigation of an outsourcing company which allegedly misused the B-1 in lieu of H-1B visa, leading to a whistleblower’s lawsuit claiming visa fraud. This federal investigation led to subsequent Congressional investigation.

Background: The “B-1 in lieu of H-1B visa” category is a narrowly granted visa which may permit certain B-1 visa holders to perform H-1B work in the U.S. as long as they meet the following criteria:

• Hold the equivalent of a U.S. bachelor’s degree
• Plan to perform H-1B-caliber work or training
• Will be paid only by their foreign employer, except for reimbursement of incidental travel costs such as housing and per diem. The employee must not receive any salary from a U.S. source.
• The task can be accomplished in a short period of time.

These travelers are admitted to the U.S. as B-1 visitors, and may only stay in the U.S. for the time granted by the Customs and Border Protection upon entry to the U.S.

There has been significant concern that this visa category may be subject to abuse and that employers are using the “B-1 in lieu of H-1B” category when the work would in fact require an H-1B visa, and that U.S. wages be paid to the worker. While no immediate changes have been made to this category, it is possible that DOS may apply a higher standard of review before issuing “B-1 in lieu of H-1B visas.” Individuals applying for these visas may receive additional scrutiny at U.S. Consulates.

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