B visa in lieu of other visas
In the United States, the most common visa used for short-term trips is the B visa. This is a combination of the B-1 visa (for short-term business trips) and the B-2 visa (for short-term tourism/pleasure trips). People on B visas are generally not allowed to engage in productive work or study activities. However, in some cases, B visas can be issued that allow people to engage in some types of productive work and learning activity, in lieu of another visa. The three visa categories, for which a B visa  could be issued instead, are the H-1B visa (the primary use case: a temporary visa for skilled workers), H-3 visa (a trainee and special education exchange visitor visa), and J-1 visa (a visa for exchange visitor students and scholars). The U.S. Department of State recommends that consular officers clearly annotate such B visas to make the scope of the visa clear to the applicant and the U.S. Customs and Border Protection officer at the port of entry. Prior to the September 2001 attacks, the B visa could also be used by people on short courses of study, but now such  people need to get a M-1 visa or F-1 visa. However, B visas may still have annotations that allow for transition to student visas through Form I-539. Not all United States consulates offer B visas in lieu of other visas. The total number of such visas issued is also small: for instance, in 2011, the U.S. Department of State reported that fewer than 1000 B-1 in lieu of H-1B visas were issued annually. Some consulates, such as the Chennai consulate, explicitly listed the B-1 in lieu of H-1B as part of the Business Executive Program until that program was discontinued  on April 1, 2015. Some consulates, such as the Mumbai consulate, list the B-1 in lieu of H-1B but not as part of any specific program. This article discusses these rare uses of the B visa and the rules governing these uses. Rules governing the B visa, and the limited way these rules are modified. Inflexible rules. The following rules governing the B visa need to be honored even for B visas issued in lieu of other visas: Restrictions on usual B visas that get relaxed. People on usual B visas are allowed to engage in the following activities: B  visas issued in lieu of work or trainee visas add to this list of permissible activities the activity of productive work or learning activity in the specific context permitted by the visa. For instance, a B visa issued in lieu of a H-1B for a worker for a non-U.S. company working on a project for a U.S. client allows the worker to engage in productive work activity as part of completion of the project. Generally, a B visa issued in lieu of any other visa category is strictly more powerful than an ordinary B visa. In particular, all activities  permitted under an ordinary B visa are permitted for a B visa in lieu of another visa. In particular, a B visa in lieu of another visa can be used for ordinary business or travel purposes as long as the visa is valid. Differences in the application criteria and process. For a typical work or exchange visitor visa, there are additional prior steps that need to be taken before the visa application: Neither of these steps is part of the application process for a B visa in lieu of a work visa. Rather, the application is made directly to the  consulate with all the relevant evidence submitted to the consulate. The following are five criteria that need to be satisfied by work visa applicants and their petitioning employers: The "in lieu of" visas differ in the following respects: Importance of having the "in lieu of" annotation at the time of visa issuance. An ordinary B visa "cannot" be retroactively changed by an applicant or his or her sponsoring company or institution to a B visa in lieu of another visa. Even if a person has an already valid B visa, the person "must" get a new B visa in  lieu of the appropriate visa in order to visit the United States for productive work or study activities. When the person gets this visa, the earlier B visa is cancelled (without prejudice, i.e., in a way that indicates that this was not due to any fault or violation on the part of the applicant) and replaced by the new B visa. Inapplicability to VWP travel. Most citizens of Visa Waiver Program (VWP) countries are eligible for visa-free travel to the United States for short-term business and tourist trips of the sort that would usually require B visas. However , people entering via the VWP, without a visa, "cannot" engage in the additional activities permitted for the "in lieu of" visas. In other words, the VWP mostly substitutes for ordinary B visas, but cannot substitute for B visas in lieu of other visas. No change of status possible within the United States. Stay on the usual B visa can be extended while in the United States by filing Form I-539 with the United States Citizenship and Immigration Services. Form I-539 cannot be used to change the nature of the B visa to include the "in lieu of  annotation; such changes can only be made at a consulate. No dependent visa. As with ordinary B visas, there is no visa for dependents of the in lieu of" visas. However, the family members of B visa holders can still apply for ordinary B visas and use those to accompany or visit the holder of the "in lieu of" visa. History. Original use of B-1 in lieu of H-1. The use of the B visa in lieu of other visas is not mentioned in any legislative statutes. The concept appears to have been first created in the 1960s in a  joint effort of the Immigration and Naturalization Services (the predecessor to the U.S. Department of Homeland Security, that carried out all the immigration processing and enforcement functions currently carried out by the branches of the DHS) and the U.S. Department of State. The first explicit articulation of the "B-1 In Lieu of H-1" category was in a 1982 cable. As of 1982, there was no separate H-1B visa; rather there was a single H-1 category for high-skilled workers (the H-1B in its present form would be created as a result of the Immigration Act of 1990). The cable was  in response to "Matter of Srinivasan", a case involving the denial of B-1 status to employees of an India-based computer company. The INS determined that the B-1 classification (in lieu of H-1) is appropriate under the following circumstances: Changes in the 1990s. The Immigration Act of 1990 officially split the original H-1 visa into a H-1A visa (for nurses) and H-1B visa (for other categories of skilled workers) and imposed an annual numerical cap on H-1Bs. In 1993, the INS and the U.S. Department of State proposed regulations that, by explicitly listing all permissible uses of B-1 visas, would  have eliminated the B-1 in lieu of H-1 category. However, these regulations were never implemented. Tightening of restrictions on B visa use for study. After the September 11, 2001 attacks, people were no longer permitted to engage in even short courses of study on the B visa. Instead, such people needed to get a M-1 visa or F-1 visa. However, B visas may still have annotations that allow for transition to student status through Form I-539. However, there is also a H-3 visa, which can be used by trainees (people who have been invited to participate in a training program ) and special education exchange visitors. It is possible to receive a B-1 in lieu of H-3. It is also possible to receive a B-1 in lieu of a J-1 visa, but this applies only when the sponsoring entity is the United States government. Renewed scrutiny in the 2010s. In the aftermath of revelations by whistleblower Palmer about apparently fraudulent immigration practices by multinational company Infosys, there was renewed scrutiny of the B-1 visa. Infosys paid a $34 million settlement to the United States government. Senator Chuck Grassley raised concerns about the use of B-1 in lieu of H-1B, in  particular highlighting the lack of protections for United States labor because, unlike H-1B visas, no Labor Condition Application was needed. In response, Cyrus Mehta and Myriam Jaidi, writing for Immigration Daily, noted that there were many work visa categories, such as the L-1 visa and O-1 visa, that did not require a LCA, and the B-1 in lieu of H-1B was not unique in this regard. Immigration lawyer Angelo Paparelli stressed the importance of not jeopardizing the B visa. The U.S. Department of State's response to Grassley's questions led some commentators to believe that the B-1 in lieu  of visas were in imminent danger. However, a cable issued by the Department of State in June 2012, with updated guidelines on the use of B-1 in lieu of H-1B and H-3, suggested that the category would still continue to be used. B-1 in lieu of H-1B. The most common "B in lieu of" visa is the B-1 issued in lieu of the H-1B visa. To better understand the role of this visa, we review the main use case of the H-1B visa. The process to obtain an H-1B visa and the scope of the visa. The H-1B status is  a temporary nonimmigrant worker status working for a United States employer granted for up to three years (extendable by another three years, after which it can be extended only in case of pending Form I-140 or Adjustment of Status applications). The procedure for obtaining the status is as follows: In particular, the following aspects of the H-1B make it unsuitable for various kinds of temporary work: What the B-1 in lieu of H-1B does. For multinational companies that have both United States and international offices, or for non-U.S. companies with U.S. clients, the B-1 in lieu of H-1B is  a viable option. The B-1 in lieu of H-1B differs from the H-1B in the following respects: However, the B-1 in lieu of H-1B "does" require the worker to demonstrate that he or she is skilled and that the skills are needed for the job being performed in the United States. The worker must also show that the wage being paid to the worker is at or above the prevailing wage for that occupation and intended employment area. A clear employer-employee relationship must be established, and in the case of multinationals, it must be clearly demonstrated that the worker  is employed and paid by the non-U.S. part of the company. These demonstrations need to be made directly to the consulate rather than having to first go through USCIS. All the other usual requirements needed to obtain a nonimmigrant visa continue to apply, namely strong home times (to overcome the Section 214(b) ground of denial) and not satisfying any of the grounds of inadmissibility. Advantages of the B-1 in lieu of H-1B. There are a few key reasons why employers might use the B-1 in lieu of H-1B: Disadvantages of the B-1 in lieu of H-1B. The following have  been cited as disadvantages of the B-1 in lieu of H-1B: B-1 in lieu of H-3. Summary. The H-3 visa is a temporary visa for trainees and special education exchange visitors. It has two subcategories: A B-1 visa can be issued in lieu of the H-3 trainee visa. In both cases (the H-3 trainee visa and the B-1 in lieu of H-3), "both" these conditions must be satisfied: The key differences between the H-3 and the B-1 in lieu of H3 are: B-1 in lieu of J-1. The J-1 visa is a special visa for exchange visitors (students or scholars ) sponsored by a university, private sector, or government program. The B-1 in lieu of J-1 is used if "all" the conditions below are satisfied, as clarified in a 2004 memo issued by the U.S. Department of State: