The “B-1 in lieu of H-1B” visa has been an important and legitimate source of flexibility facilitating the needs of global businesses and business travelers, with significant benefit to the United States economy. The April 14, 2011 letter from Senator Charles E. Grassley to Secretary of State Hilary Clinton and Secretary of Homeland Security Janet Napolitano in light of the lawsuit against Infosys, may threaten the existence of this important category.
We write to clarify its utility for American businesses in a globalized world, and strongly urge that the “B-1 in lieu of the H-1B” not be eliminated as this will undermine US competitiveness.
As we noted in a recent article on the B-1 category, the B-1 business visa remains one of the “most ill-defined” visas but plays a very important role in providing flexibility to business travelers. While the B-1 visa is associated with visiting the US to participate in meetings and negotiate contracts, the “B-1 in lieu of H-1B” was created to facilitate travel to the US of individuals who would otherwise qualify for an H-1B visa, but only needed to come to the United States for a limited period of time.
In the current controversy over the US of the B-1, scant attention has been paid to the “B-1 in lieu of the H-1B,” which permits broader activities than the regular B-1 visa, albeit for a short period of time. Indeed, many of the activities that have been alleged to be outside the scope of the B-1 may be permissible under the “B-1 in lieu of the H-1B.”
Hence, what has been alleged to be fraud may not really be the case if viewed under activities permissible under the “B-1 in lieu of the H-1B.”
The “B-1 in lieu of the H-1B,”, Mr. Macmanus points out that problems with the B-1 category usually result from misrepresentation in the visa application, not from a misapplication of visa law. In addition, Mr. Macmanus’s letter makes clear that consular officers are carefully trained to determine whether issuing a B-1 visa or a “B-1 in lieu of H-1B” is appropriate.
These categories are not taken lightly and have strict requirements, carefully enforced, with fewer than 1000 “B-1 in lieu of H-1B” visas issued each year worldwide.
This restrictive view of the category is sometimes too carefully enforced to the detriment of companies that need individuals from their foreign entities to come to the United States entity for training that is unavailable at the foreign entity, and that is crucial to the global operations of the company as a whole.
We hope that the DOS and DHS continue to recognize and defend the importance of the “B-1 in lieu of H-1B” and other companion “lieu of” categories to international commerce and the benefits that accrue to the United States economy, rather than eliminate it or read it out of existence as a knee jerk reaction to a Senator’s objections, especially one who has generally been opposed to the existence of the H-1B and L visa programs.
Cyrus D. Mehta & Myriam Jaidi
