Earlier today, Senior Partner Bill Reich appeared at a local Port of Entry, representing a Canadian corporate executive who was seeking B-1 status for a period six (6) months, in lieu of an H-1B. The applicant is employed by a Canadian company, which has a U.S. subsidiary who temporarily required a corporate executive to review its business operations due to difficulties that had arisen after the company discharged its president. The applicant is being sent to the U.S. subsidiary temporarily to troubleshoot the situation and make some recommendations on behalf of the Canadian employer.
While applicants for B-1 (in lieu of H-1B) status must still meet the requirements of an H-1B, they do not have to bear the burdens of a typical H-1B filing which requires an LCA, a formal filing with USCIS, and the payment of the applicable H-1B filing fees (which is a relatively high expense that the U.S. employer must bear). The B-1 (in lieu of H-1B) status was created with the intent of facilitating travel to the U.S. by those foreign nationals who would normally qualify for a H-1B visa, but who simply needed to enter the U.S. for a brief period of time.
According to the Dept. of State’s Foreign Affairs Manual, to qualify for B-1 (in lieu of H-1B) status, a foreign national must qualify for H-1B status, establish non-immigrant intent (this is established by demonstrative strong ties to their home country), must be regularly employed abroad and their salary must be paid by their foreign employer. While in the U.S. for a limited amount of time, they must continue to be paid by their foreign employer and not from the U.S. entity that they are performing services for while in the U.S. in B-1 (in lieu of H-1B) status.
See 9 FAM 41.31 N11 - Aliens Normally Classifiable as H-1 or H-3.
Once CBP was convinced that our Client qualified for B-1 (in lieu of H-1B) status, he was issued a multiple entry Form I-94, valid for six months. The cost of this Form I-94? $6 to be paid to CBP at the Port of Entry. With this B-1 (in lieu of H-1B) status, the Client will now be able to carry out his duties as requested by his Canadian employer for their U.S. subsidiary and remain in strict compliance with U.S. immigration laws.