The H-1B and B-1 visas are both temporary, non-immigrant visas. The B-1 is primarily a visitor’s visa for professionals to enter the United States for a business-related purpose. There is a version of the B-1, known as a B-1 in Lieu of H-1B that allows the individual to undertake employment while in the US. The H-1B is a temporary work visa allowing foreign individuals who have secured employment in the United States to undertake temporary work,
This article explains and compares the primary characteristics of the B-1 (or B-1 in Lieu of H-1B) and H-1B visas.
What Type of Activity is Eligible for a B-1 Visa?
The B-1 Visa is a visitor’s visa. It was created for individuals participating in a commercial or professional business activity within the United States.
The qualifying types of business or professional activities include:
- Meeting or consulting with business associates in the United States;
- Traveling to the United States for a scientific, educational, professional or business convention, or a conference taking place on specific dates;
- Administering or working through a state probate court to settle the estate of a decedent;
- To negotiate the terms or execution of a contract related to a business activity;
- To participate in a short-term, business or professional training program;
- Transiting through the United States: certain persons may transit the United States with a B-1 visa;
- Certain air crewmen may enter the United States as deadhead crew with a B-1 visa.
The B-1 in Lieu of H-1B is used when a US company contracts with a foreign company to perform work. A foreign employee then comes to the US temporarily to work on the project. The B-1 is that it is granted for up to a six-month period. It can be extended once for an additional six months.
What Type of Activity is Eligible for a H-1B Visa?
The US H1-B visa applies to “specialty occupations”. A specialty occupation is one that has the following requirements:
The job must require a Bachelor’s or higher degree or its foreign equivalent. The degree requirement must be common to the industry or the job.
The specific duties of the job are specialized and complex, such that the knowledge required to perform the duties requires a bachelor’s degree (or higher) and potentially relevant experience.
What are the Requirements for an Individual Seeking a B-1 or H-1B Visa?
Remember, the B-1 is a visitor’s visa. The B-1 in Lieu of H-1B does allow for work in the US. To qualify for the B-1 and H-1B the applicant must meet the following criteria:
Specialty Occupation – The work to be undertaken in the US must be specialized work to be performed by a skilled professional. This is generally the same level of skill required for both the B-1 and H-1B visa. Though, proof of the required skill level for the work is considered easier under the B-1. Remember, a skilled worker must be engaged in a ‘speciality occupation’ in graduate level work generally requiring at least a bachelors degree or equivalent.
Employment – There is difference here between the B-1 and H-1B:
B-1 in Lieu of H-1B – The B-1 in Lieu of H-1B is primarily meant for professionals who are coming to the US on behalf of a foreign company that has contracted with a US company to perform services. The applicant must be a permanent employee of the non-US business and must continue to be paid by the employer outside the US while in the US on a B-1 in lieu of H-1B visa. As such, the worker most remain on the payroll of the overseas business. The worker may receive no compensation other than an expense allowance from a US source. As such, the foreign worker is not really a US employee at all. She is a foreign employee who happens to be carrying on professional work within the US borders.
H-1B – This visa allows individuals to come to the United States and work for a US employer. First off, the applicant must be a permanent, full-time employee of a US company. The US company must go through the process of a labor condition application. This requires the employer to attest to the Department of Labor that they will pay wages to the H-1B nonimmigrant workers that are at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or the prevailing wage for the occupation in the area of intended employment – whichever is greater. The idea is that this protects against scenarios where an employer is simply attempting to displace a US worker with cheaper foreign labor.
Education – The educational requirements between the B-1 and H-1B are similar.
B-1 in Lieu of H-1B Visa – The graduate-level worker must have at least a bachelors degree. Ideally the bachelors degree should be relevant to the services to be provided. Work experience or a combination of work experience and other qualifications may be considered to be equivalent to a degree. In any event, the applicant must demonstrate specialized skills.
H-1B Visa – The applicant must have completed a US bachelor’s degree (or higher) from an accredited US college or university (or a foreign equivalent). The degree must be in the specialty occupation that is related to the job to be performed in the United States. The employee may also demonstrate her expertise in the specialty through a combination of education, experience, and training.
What is the Length of Stay for the B-1 versus H-1B Visa?
The B-1 may be granted for up to six months. It can be extended or renewed for one six-month period. So, the limit on the B-1 is a one-year stay in the United States.
The H-1B visa is initially granted for up to three years. The H-1B may also be renewed once for an additional three-year period, for a maximum of six years in the United States.
It is worth noting that the H-1B is a dual-intent visa. It allows for the visa holder to apply for permanent residency status (a US Green Card) while on the H-1B visa. The B-1 is not a dual intent visa. Applying for permanent residency status while on the B-1 can forfeit the visa.
Family and Dependents
The B-1 visa does not allow dependent family members to accompany the applicant into the US. Any dependent family members must apply for a B-2 visa, which was created for dependents of the B-1. The H-1B visa requires dependent family members (spouse and children unmarried and under the age of 21 years) to apply for the H-4 visa designated for H-1B dependents. Both the B-2 and H-4 restrict the family members from working while in the US.
LawTrades Understands Immigration Law
To say that immigration law is complex is an understatement. There are many substantive and procedural rules that apply to the immigrant and non-immigrant visa process. Running afoul of any of these laws can have significant consequences. The visa filing fees and processing time alone make any errors in the visa filing process a serious negative.
We recommend that you consider working with a competent, experienced immigration lawyer when undertaking any sort of immigration filing procedure.