The US State Department has proposed a change to B-1 business visitor visa regulations so that certain individuals would no longer be able to obtain a B-1 visa “in lieu of” an H-1B or H-3 trainee visa. If the rule is finalized, US companies would no longer be able to host a foreign national on a B-1 visa to perform short-term H-1B duties while remaining on foreign payroll. The proposed regulation will be published in the Federal Register on October 21, 2020 and will be followed by a 60-day comment period before being finalized.

BILOH visas (“B in lieu of H”) are currently available only under limited circumstances. The proposed rule would not eliminate any valid BILOH visas. However, BILOH visa-holders could be subject to additional scrutiny from United States Customs and Border Protection when entering the US related to whether their pay meets prevailing wage standards.

Background on BILOH

The B-1 visa is designed for foreign nationals to enter the United States to perform non-productive business activities on behalf of a foreign employer. Acceptable activities include things like negotiating a contract or attending a conference.  

Under the BILOH option, foreign nationals can perform productive H-1B work for a defined and limited period. Compensation to BILOH workers must be honoraria, or voluntary, and the BILOH visa holder must remain on foreign payroll.

Next Steps

After the proposed rule is published in the Federal Register on October 21, it will face a 60-day comment period. The US State Department will then review the public’s feedback and possibly make revisions. It typically takes several months to finalize a proposed rule, and this rule’s finalization could be impacted by the upcoming presidential election.

Conclusion

For more information about this proposed rule and how it could impact your company, please contact your trusted Chugh, LLP professional.