Recent procedural changes implemented by the U.S. Department of State (DOS) signify an increased regulatory focus on the B-1 in lieu of H-1B visa category. Traditionally employed to facilitate short-term, professional engagements abroad, this classification has been under heightened scrutiny for a long time due to concerns over misuse and circumvention of H-1B program requirements and associated fees. This article examines the background, the new review process, and the implications for U.S. employers and foreign professionals.
Background: Narrow Use and Oversight Concerns
The B-1 in lieu of H-1B classification permits foreign professionals to undertake temporary assignments in the United States while maintaining employment and remuneration from their foreign employer. Key statutory requirements include:
• Continued employment and salary payment from a foreign source.
• No entry into the U.S. labor market through local employment or direct hire.
• Work incidental to foreign employment, with no significant impact on U.S. labor or economic conditions.
This classification was designed to serve limited, specific purposes, primarily short-term business activities such as training, consulting, or brief project assignments. Its narrow scope aims to prevent misuse as an alternative route to traditional employment-based visas.
However, recent legislative developments introduced a $100,000 “Visa Integrity” fee for new H-1B petitions filed on or after September 21, 2025. Concerns have arisen that some employers might exploit the B-1 in lieu of H-1B for circumventing this fee—by initially entering the U.S. under B-1 status and subsequently filing H-1B change of status petitions from within the country. Such practices could undermine statutory fee collection and erode the integrity of the H-1B program.
New Review Process and Centralized Oversight
In response to these concerns, the DOS has instituted a procedural change whereby consular posts are now required to refer B-1 in lieu of H-1B applications to the Visa Office in Washington, D.C., for final approval prior to visa issuance. This review process introduces several key features:
• Delayed issuance: Visa stamps will be granted only after the Visa Office’s explicit approval.
• Enhanced scrutiny: Applications will be assessed against specific legal standards and evaluated for signs of potential circumvention.
• Broader oversight: The centralization aims to ensure that the classification is used strictly within its statutory scope and to deter misclassification.
Applicants and employers should anticipate extended processing times and more rigorous application review, potentially affecting planning and staffing logistics.
Implications for Employers and Foreign Professionals
This procedural development underscores the necessity for employers to reassess their use of the B-1 in lieu of H-1B visa category. Recommended strategies include:
• Demonstrating Compliance: Ensuring documentation clearly substantiates the foreign employer-employee relationship and confirms that remuneration is paid and maintained abroad.
• Activity Evaluation: Careful evaluation of proposed activities to verify adherence to permissible B-1 business parameters, avoiding arrangements that resemble employment or represent H-1B violations.
• Alternative Options: Considering other visa pathways—such as traditional H-1B petitions or L-1 intra-company transferee visas—where appropriate, to mitigate delays and scrutiny.
Furthermore, employers should prepare for potential longer processing timelines and stricter application review standards, which may impact project timelines and staffing decisions. Employers and foreign professionals must remain vigilant and compliant with evolving regulatory standards to avoid delays and potential penalties. Strategic planning and legal counsel are recommended to navigate these changing procedures effectively.
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