Comments by Sanwar Ali:
These visa categories have become increasingly difficult to obtain anyway. There is a high refusal rate. If Biden is elected president will this change?
A proposed regulation, published in the US Federal Register by the Department of State on October 21 2020, seeks to revise a number of B1 business visit visa regulations by scrapping certain options for foreign nationals looking to secure a B1 in lieu of an H1B visa or lieu of H3 visa.
If the regulation is passed it could mark the end of foreign nationals entering the US on a B1 visa to perform short-term H1B or H3 services in prescribed situations while remaining on foreign payroll. Instead, a foreign national would have to qualify independently for a B1 visa for a reason outside the existing B1 in lieu of H1B policy.
The proposed rule change is now subject to a 60-day public comment period. The reason given for the changes by the Department of State is ‘to remove confusing and outdated language about the scope of permissible activities in the US for people in the country on a B1 visa.’
Further Buy American, Hire American policy
It’s understood that by omitting language about ‘business’, the Department of State is aiming to further Donald Trump’s ‘Buy American, Hire American’ Act of 2017 – legislation that claims to create higher wages and employment rates for workers in the US and protect their economic interests.
Under current rules, B1 visa holders are not allowed to partake in ‘productive employment’ in the US. However, the Department of State’s Foreign Affairs Manual (FAM) does allow limited use of the B1 program for productive work.
The B1 in lieu of H1B visa policy is considered a viable alternative under which an overseas national could be eligible for an H1B visa, but will arrive in the US to carry out H1B speciality occupation services for a specific and limited period, while remaining on foreign payroll.
Under FAM, there is a similar provision for overseas nationals who are eligible for the H3 trainee visa and are coming to the US to undergo specific types of training.
If the proposed regulation is finalized it does not mean that any existing valid B1 in lieu of H1B visas will be void. The Department of State has also assured that any issued visas will not be rescinded. However, visa holders can expect to be subject to an additional, independent review by US Customs and Border Protection (CBP) at ports of entry.
Independent reviews may include questioning over a person’s visit to the United States and whether they will be paid the prevailing US wage for work while in the country.
It’s understood the Department of State’s proposal also includes a revision of current regulations to clarify that B1 classification does not include entertainers or athletics professionals coming to the US to perform services as per their profession, which are better classified under the P1 visa program and O1 visa program.
Under the FAM, exceptions to this general rule will remain.
Review and final rule
Following the closure of the public comment period, the Department of State will review the feedback provided by the public before issuing a final rule in the Federal Register.
In a statement from the US Department of State, the agency said: “If the rule is finalized, B1 in lieu of H1B visa provisions under the FAM will be withdrawn.”
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