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The Department of State Proposes to Eliminate B-1 in Lieu of H Visa Classifications

On October 21, 2020, the Department of State (“Department”) published a proposed B-1 regulation in the Federal Register.  The Department seeks to revise the existing B-1 business visitor regulations by eliminating options for foreign nationals to obtain a B-1 visa “in lieu of” an H-1B specialty occupation or H-3 trainee visa (“BILOH”).  If finalized, the rule removes the possibility for foreign nationals to enter the U.S. on a B-1 visa to perform short-term H-1B or H-3 services in prescribed situations while remaining on foreign payroll. Instead, a foreign national would need to independently qualify for a B-1 visa for a reason other than the existing BILOH policy. The proposed rule has a 60-day public comment period.

The stated purpose of the revisions is to remove confusing and outdated language about the scope of permissible activities in the U.S. for an individual on a B-1 visa. By removing the language about “business,” the Department seeks to further the goals of the Buy American and Hire American Act (2017), which purports to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.”

While B-1 visa holders are prohibited from engaging in productive employment in the United States, the Department’s Foreign Affairs Manual (“FAM”) currently permits limited use of the B-1 classification for productive work. The BILOH option is typically a viable alternative where a foreign national may qualify for an H-1B visa, but will be entering the United States to perform H-1B specialty occupation services for a specific and limited duration, while remaining on foreign payroll. There is a similar provision in the FAM for foreign nationals who may qualify for the H-3 trainee visa and will be entering the United States to engage in certain types of training.

If the rule is finalized, it will not invalidate any existing, valid visas that currently have a BILOH designation, nor will the Department revoke any issued visas. However, foreign nationals will be subject to an additional, independent review by U.S. Customs and Border Protection at U.S. ports of entry, which could include questioning on the purpose for the individual’s visit or whether the individual will be paid the U.S. prevailing wage for their work.

The Department proposal also seeks to revise the existing regulations to clarify that B-1 classification does not include members of the entertainment or athletic professions seeking to perform services within the scope of their profession (which are more properly classified by the O-1 or P-1 categories). Exceptions to this general rule will remain in the current Foreign Affairs Manual.

At the close of the public comment period, the Department will review the public feedback and issue a final rule in the Federal Register. According to the Department, if the rule is finalized, the BILOH provisions in the FAM will be withdrawn.

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