Oct 20 2020

State Department Proposes Elimination of B-1 in Lieu of H Visa Classifications

United States

At a glance

  • The State Department is proposing a revision to the B-1 business visitor regulations to remove the option to obtain a B-1 visa “in lieu of” an H-1B specialty occupation or H-3 trainee visa.
  • If the rule is finalized, it would eliminate a longstanding policy that permitted foreign nationals to enter on a B-1 visa to perform short-term H-1B services in limited circumstances while remaining on foreign payroll.
  • The agency will accept comments on the proposed change for 60 days after publication in the Federal Register tomorrow. The regulation will not take effect unless and until it is finalized, a process that typically takes several months.

The issue

The State Department has released a proposal to eliminate an option available in certain limited circumstances for foreign workers to obtain a B-1 business visitor visa “in lieu of” an H-1B specialty occupation or H-3 trainee visa (BILOH, or “B in lieu of H”). An advance copy of the proposal is available, and will be published in the Federal Register tomorrow. The agency has provided a 60-day public comment period.

If finalized, the rule will not invalidate any currently valid visas with a BILOH annotation, and the State Department will not take action to revoke any such visas. BILOH visa holders would, however, be subject to independent review by U.S. Customs and Border Protection at U.S. ports of entry, which could include questioning on whether the foreign national will be paid the U.S. prevailing wage.

The State Department proposal also seeks to revise the regulations to clarify that the B-1 classification does not categorically 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). Certain exceptions to this general rule will remain in the current Foreign Affairs Manual (FAM), however.

Background on BILOH

The B-1 visa classification is generally available to foreign nationals who will enter the United States to perform legitimate business activities while remaining employed abroad. B-1 visa holders are prohibited from engaging in productive employment in the United States, though the State Department’s FAM permits use of the B-1 classification in limited circumstances by foreign nationals who qualify for the H-1B visa and are entering the United States to perform H-1B services for a specific and limited duration while remaining on foreign payroll. There is a similar FAM provision for foreign nationals who qualify for the H-3 visa and are entering the United States to engage in certain types of training.

The BILOH concept has existed for many years and has been the subject of debate at several points during its lifetime. Both the State Department and the U.S. Customs and Border Protection have increasingly scrutinized BILOH visa applications and entries to the United States in recent years. 

What’s next

After publication in the Federal Register on October 21, and close of the public comment period, the State Department will review the feedback and prepare to issue a final rule in the Federal Register. Some aspects of the rule could be revised based on public feedback. There is no set timeframe for publication of a final rule, though the process typically takes several months. According to the agency, if the rule is finalized, the BILOH provisions in the FAM will be withdrawn. However, the progress of the proposal and any future changes to the BILOH provisions of the regulations and FAM could be affected by the upcoming national elections.

Fragomen is closely following  the proposal through the regulatory process and will provide updates.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.