FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS COLLECTIVE
Applicant Must Overcome Presumption of Immigrant Intent to Qualify for B Status
3. Applicants for all B visas, including B‐1 visas issued under 9 FAM 41.31 N11 (“Note 11”), must overcome the presumption of immigrant intent established by INA 214(b). Note 11 applicants might qualify for B, H, and/or L visas, but may choose a B visa under Note 11 for convenience and efficiency.
Applicant Must Also Plan to Engage in H Activity
4. Applicants should only be annotated (see para 6 below) under B‐1 in lieu of H‐1B when they plan to engage in hands‐on work that would normally require an H‐1B. Similarly, applicants should only be annotated under B‐1 in lieu of H‐3 in the rare case when the proposed training has a hands‐on work component or other component that is permissible in H‐3 status, but would not clearly be permissible in B‐1 status, but for Note 11.
Employer and Source of Remuneration Must be Overseas
5. As described in Note 11, the applicant must continue to be paid by the overseas employer while they are in the United States. An expense allowance from a U.S. employer is permitted, and a foreign branch of a U.S. firm can qualify as a foreign firm for purposes of Note 11.
Not for Long Term Placement
6. B‐1 visas issued under Note 11 are not intended for long term placement and should generally be issued for activity in the United States that is less than six months in duration. Also, to avoid possible delays at the port of entry, the Department advises consular officers to annotate with “B in lieu of H, 9FAM 41.31 N11.”
B‐1 in Lieu of H‐1B
7. In order to qualify for B‐1 in lieu of H‐1B, the consular officer must find that the applicant clearly meets the H‐1B requirements, and is clearly an employee of the overseas company. The work and the applicant must be H‐1B caliber, that is, the work must meet the definition of “specialty occupation” in that it requires a bachelor’s degree or equivalent, and the applicant must clearly have a bachelor’s degree or equivalent experience. If the H‐1B caliber of the work cannot be clearly established to the satisfaction of the consular officer, then the applicant must file a petition for an H‐1B with USCIS. Further, the applicant must be an employee of the overseas firm, and paid by the overseas firm. It may be more difficult for a new hire to establish their employment status with the overseas firm if they are immediately sent to the United States to engage in H‐1B caliber activity.
B‐1 in Lieu of H‐3
10. In order to qualify for B‐1 in lieu of H‐3, the consular officer must find that the applicant clearly meets the H‐3 requirements for a trainee, and is clearly an employee of the overseas company. A training program designed to train aliens to work in the United States is not an appropriate H‐3 training program. The regulatory criteria for an H‐3 petition approval are that the proposed training is not available in the alien’s home country, the beneficiary will not be placed in a position that is in the normal operation of the business in which U.S. citizen and legal permanent resident workers are normally employed, and that there will be no productive employment unless it is incidental and necessary to the training and pursuance of a career outside of the United States. Further, the applicant must be able to describe the training, and the consular officer will normally require documentation of the training provided by the employer. If the applicant cannot clearly establish these requirements, then they must file an H‐3 petition with USCIS.