B-1 Visas in Lieu of H-1B
August 18, 2011, 12:09 AM
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B-1 nonimmigrant visas allow foreigners to enter the United States for temporary short-term business trips of less than three months. Typically about 4 million B visas are issued each and every year and there is no yearly upper limit to the number of visas that can be issued. Bottom line is that millions of highly paid jobs are given to foreign workers every year!

B-1 visas are not supposed to be used as an alternative for H-1B visas because the H-1B yearly cap of 85,000 visas per year could easily be thwarted by using the high volume B-1 visa.

Although it’s against the law to use B-1 visas instead of H-1Bs, companies often do because they are tempted by the unlimited nature of the B visa and the fact that it’s fast, easy, and cheap to obtain. Proving that an employer is cheating by using B-1s as a substitute for H-1B visas can be difficult for investigators to prove because the job descriptions that are allowed for each visa overlap — and there are gray areas in the definition of the B-1 visa that make interpretation of the law difficult. Here are a few of the allowable activities for B-1 visas according to the immigration attorney Fragomen (pay close attention to how vague they are and how easily any of these could be used to describe a broad range of activities performed by H-1Bs):

  • Engaging in meetings with business associates;
  • Engaging in contract negotiations;
  • Attending scientific, educational, professional or business conventions or conferences;
  • Engaging in activities in conjunction with litigation;
  • Conducting commercial transactions that do not involve gainful employment, such as taking orders or making purchases of inventory or supplies for a foreign employer; and
  • Performing after-sales service on equipment or machinery purchased from a company outside the United States pursuant to a sales contract, within one year of commencement of the contract.

Most employers who use B-1 visas in lieu of H-1B don’t get into trouble but there have been notable examples when they got caught (Texas Trinity River Bridge). In that case the Italian company Cimolai unsuccessfully argued that the welders they brought to the U.S. were performing after-sales service (see last bullet above) to the bridge components.

The penalties that can be imposed on an employer are not severe enough to serve as a disincentive to cheat the nonimmigrant visa system. Usually employers that cheat are allowed time to correct the problem and if they don’t a small monetary fine may be imposed. Severe violators may be barred from hiring foreigners for up to a year. For further information see “Work Authorization for non-U.S. Citizens: Workers in Professional and Specialty Occupations (H-1B, H-1B1, and E-3 Visas), Penalties/Sanctions” on the Dept. of Labor website.

A small article appeared on CNBC that contains some remarkable admissions for alert readers.

Sources at NASSCOM tell CNBC-TV18 that while they are yet to get any assurances from the US consulate on proposals submitted by them, the industry body has come out with a set of directives for its members, which NASSCOM feels will reduce visa rejection rates while IT companies wait for the comprehensive immigration bill in the US.

Sources at NASSCOM add that the Indian IT firms are also to be blamed because with some of the IT majors, there is some ambiguity that has crept in with regards to strict guidelines that cover the different categories of visas, specifically with regards to B-1 visas, which were also issued in leave of H-1B visas.
Don’T expect to see any cap on B-1 visas, says NASSCOM (text, video, Jul 22, 2011, CNBC-TV18)

The National Association of Software and Services Companies (NASSCOM) is a special interest group that represents Indian owned software and other high-tech companies. NASSCOM is authorized to lobby in the United States and it is often seen whenever legislation is being proposed that affects trade agreements or immigration between India and the U.S. NASSCOM’s admission that some of it’s members cheat on B-1 visa usage is definitely worth noting!