The Department of Justice announced last month its largest immigration settlement in history, an eye-opening $34 million. The settlement arises out of alleged misuse of “B-1 in lieu of H-1B”. This sounds technical and is, somewhat. The B-1 visa is granted to a business visitor to engage in such activities as meeting with colleagues, attending meetings, engaging in business development…but not for performing productive work from a US employer. The H-1B visa is granted for the purpose of performing productive work for a US employer. The B-1 non-immigrant visa is generally obtained after an interview at a US Consulate abroad and allows the beneficiary to be in the US for up to 6 months. The cost of filing for the B-1 is nominal, proof that the alien will be paid at least the “prevailing wage”. When granted, the H-1B is good for an initial period of 3 years, which may be extended.
Especially when initial H-1B visas are not available, as they will not be until October 2014, finding a way to bring talent into the US is a challenge. B-1 in lieu of H-1B allows a professional worker to come to the US in B-1 visa status to perform services in the US, while remaining on the payroll of his employer abroad from funds being sourced or earned abroad. Among other allegations, DOJ alleged that one of the world’s largest IT sourcing companies brought foreign employees to the US on B-1 visas and assigned them to billable work in the US. While the company denied the allegations of wrong doing, a settlement was reached between the company and the government (You read more on this case in a New York Times article here. Additional information can also be found on the US Immigration Customs and Enforcement’s website here).
Today’s US employers have to be creative to bring needed professional workers to the US, but need to be scrupulous in abiding by the law in doing so. The government is watching.