# UK Software Engineer - B1 in Lieu of H1B



## uketernity (Sep 20, 2012)

Hi All

So here is the situation. I am a software engineer from the UK, with a bachelors degree and all the relevant qualifications for an H1B visa.

I have a US employer who has offered me a job, went to apply for H1B in july to find the quota reached. So I'm exploring other options.

I believe the only visa that would work for me in the mean time, would be a B1 in Lieu of H1B. So, I'm wondering if I can setup a company in the UK (this is fairly simple), the US company pay a "salary" into that company and me draw a salary from the UK company. Then apply for a B1 in Lieu, transfer out to the US for upto 12 months, and in the mean time apply for an H1B come next april.

What information would I need to provide to the US embassy on applying for this visa and what information would I need to provide to customs & border control on entry to the USA?

I hope someone can help.

Thanks

Oli


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## twostep (Apr 3, 2008)

B1 is no H1B loop hole:>) 
Have you read up on purpose and requirements? USCIS - B-1 Temporary Business Visitor


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## vronchen (Jan 26, 2012)

as far as I heard the "B1 in Lieu of H1B" think has been abused in the past, and they are fairly strict about it now. it might raise suspicion if you have a one man company and want to work in the US. i think it will be very obvious to the CO what you are trying to do. 
also note that if you apply for the visa and they deny it, you will probably be not be eligible for the VWP anymore.


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## Davis1 (Feb 20, 2009)

B1 and B2 visitor visas


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## uketernity (Sep 20, 2012)

How would they know its a 1 man company? What kind of checks do they do?

Is there any other way of being able to work in the US until I am able to obtain an H1B visa?

Thanks

Oli


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## vronchen (Jan 26, 2012)

well, you do need to bring a letter from your employer explaining why your visit to the US is necessary for the company. if you write this letter yourself it might look sketchy. also, after the whole infosys debacle, I would expect strict controls. also note, that the immigration officers at the poe can basically decide the end date for your i-94, and it is usually 6 months.


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## twostep (Apr 3, 2008)

uketernity said:


> How would they know its a 1 man company? What kind of checks do they do?


I presume companies in the UK are registered and have certain documentation required to set them up. CEO, owner, ... all the same ... 



uketernity said:


> Is there any other way of being able to work in the US until I am able to obtain an H1B visa?
> 
> Thanks
> 
> Oli


a) You will not be able to obtain an H1B. The US employer can apply. b) You have to be in the UK for that. c) Again - there is no loop hole. You are not the first and probably not the last to try to find one, actually some are very creative about it. In the end an immigration violation means non-entry and/or no visa. B1 does not allow compensation by US company. It will be interesting to see the balance sheet and what an audit may bring for everybody involved.


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## vronchen (Jan 26, 2012)

twostep said:


> b) You have to be in the UK for that.


that's not true. otherwise the cap gap rule would be useless.


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## twostep (Apr 3, 2008)

vronchen said:


> that's not true. otherwise the cap gap rule would be useless.


He does not change status. As I am not familiar with the option you are proposing unless you do so please post an official link. A number of poster might find it interesting.


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## vronchen (Jan 26, 2012)

twostep said:


> He does not change status. As I am not familiar with the option you are proposing unless you do so please post an official link. A number of poster might find it interesting.


your answer suggested that it is not possible to apply for an h1b while being in the US, and I was just stating that that is not the case. cap gap rule is of no interest for the OP, since you need F1 status for that.

question to OP: was your h1b application submitted, or did your petitioner notice the cap was reached before submitting it? are you eligible for O1 visa?


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## EVHB (Feb 11, 2008)

Not from a .gov site, but I know that this 'B1 in lieu of H1' is a legitimate thing:



> The B1 in lieu of an H1B
> 
> In certain, limited circumstances the US Consulate may issue an employment-authorized B1 visa where the work to be undertaken would usually require an H1B visa. This provision is particularly applicable to situations where you may need a non-US company to send a member of staff to the US for a limited period in order to undertake specific projects for you, or where you wish to bring in an employee of an overseas subsidiary, affiliate or parent for a limited period. The requirements for acquiring a B1 in lieu of H1B are:-
> •The work to be undertaken in the US must be H1B level – i.e. the worker must be engaged in a 'speciality occupation';
> ...


B1 and B2 visitor visas

Also:
B-1 in Lieu of H-1B - Eligibility to do H-1B type work on business visa and other sites.

But although this may seem to be 'easy', it certainly is not! And I don't think the construction like UKeternity dreams of, is possible.


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## twostep (Apr 3, 2008)

EVHB said:


> Not from a .gov site, but I know that this 'B1 in lieu of H1' is a legitimate thing:
> 
> 
> B1 and B2 visitor visas
> ...


Unless you can quote the source please do not quote and use official sources not other forums or for-pay resources. Thank you!
Please read OP's posts. He is not an employee to be sent on a short term assignment. He is looking for fulltime employment in the US and treis to find a way around H1B cap. The drill of starting a one-man-shop and expat yourself to the US does not work anymore.


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## EVHB (Feb 11, 2008)

> And I don't think the construction like UKeternity dreams of, is possible.


And is this official enough?
B1 in Lieu of H | Embassy of the United States
photos.state.gov/.../cons-visa/feb2012_webchat_transcript.pdf


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## twostep (Apr 3, 2008)

EVHB said:


> And is this official enough?
> B1 in Lieu of H | Embassy of the United States
> photos.state.gov/.../cons-visa/feb2012_webchat_transcript.pdf


... must not receive any salary from a US source ...


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## uketernity (Sep 20, 2012)

If the salary is coming from the UK company, its not coming from a US source. The company would be a limited company, thus its own financial entity.

If a UK company were to win a contract with a US company and need to send an employee over there for up to a year in order to maintain the contract, is this not allowed?

The real question is what documentation do CBP require on entry to the US in order to satisfy a B1 in Lieu of H1B?

Thanks

Oli


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## MarylandNed (May 11, 2010)

I think there's a pretty good chance they'll see right through the "B1 in lieu of H1B" thing and your B1 will be denied - which also means you could have issues travelling via VWP/ESTA.

If your US employer has a branch in the UK, you could join that for a year and then try an intracompany transfer via L1. Otherwise just go the H1B route.


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## uketernity (Sep 20, 2012)

So I have some further ideas on this. I don't really want to wait until next october to get out to the US. Here are my ideas.

1. My mother has a Limited company in the UK, of which I am a director. She has discussed with me on some occasions about building some software for her company. She would be willing to put through a request for a B1 in Lieu of H!B visa, and send me to the US to work with the US company as a rep of her business in order to build this software. Salary would be paid by the UK company. This should satisfy the requirements for the H1B visa.

2. My current employer has previously expressed an interest in having a US branch/office/affiliate. Once I leave the company, they will likely have problems with the knowledge base loss of all the historic work the company has done technically, I know every project. It may be possible to come to an arrangement with my current employer to facilitate a smoother, perhaps phased handover, with me still providing consultation to them whilst working with the US company. My current employer could apply for a visa and send me to the US to be a "rep" for them whilst working on a multitude of collaborative projects with the US firm. Again, salary would be paid by the UK company.

Let me know your thoughts.

Thanks


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## MarylandNed (May 11, 2010)

uketernity said:


> So I have some further ideas on this. I don't really want to wait until next october to get out to the US. Here are my ideas.
> 
> 1. My mother has a Limited company in the UK, of which I am a director. She has discussed with me on some occasions about building some software for her company. She would be willing to put through a request for a B1 in Lieu of H!B visa, and send me to the US to work with the US company as a rep of her business in order to build this software. Salary would be paid by the UK company. This should satisfy the requirements for the H1B visa.
> 
> ...


So neither company actually currently exists in the US? If so, in my opinion, they'll see this as a blatant attempt to circumvent the rules and you will be denied the B1.


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## uketernity (Sep 20, 2012)

The b1 in lieu isn't a visa that a US company would apply for I believe.

Isn't the point of a b1 in lieu of h1b designed to allow non us employers to send an employee to the us to work, whilst still being paid by the UK company.


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## Bevdeforges (Nov 16, 2007)

uketernity said:


> The b1 in lieu isn't a visa that a US company would apply for I believe.
> 
> Isn't the point of a b1 in lieu of h1b designed to allow non us employers to send an employee to the us to work, whilst still being paid by the UK company.


The catch is that the B1 in lieu is not an immigrant visa. There's a difference between going to the US to work while maintaining your primary residence in the UK and moving to the US to work for a UK company. 
Cheers,
Bev


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## uketernity (Sep 20, 2012)

Yup, that's exactly what I'd be doing, moving to the us, whilst employed and paid by a UK company.

Is that not ok?


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## twostep (Apr 3, 2008)

uketernity said:


> Yup, that's exactly what I'd be doing, moving to the us, whilst employed and paid by a UK company.
> 
> Is that not ok?


The rules apply to all:>) No matter how you shuffle it - the US company still pays for services rendered and the task cannot and will not be handled in a short period of time as you try to bridge to a hopefully approved H1B in October of 2013.
B1 has been used and abused since L1 applications (particullarly in some industries such as IT) have been under the microscope. The idea is neither new nor unknown.


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## uketernity (Sep 20, 2012)

The US company would not be paying for services rendered. I would be working for my mums company, paid by her company and receive no compensation from the US company.

How would a UK company be able to send an employee to work with a US company, but still be paid by the UK company.


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## Bevdeforges (Nov 16, 2007)

To be paid as an employee you would have to be paid through a US entity. And, that means having US social security (national insurance) and tax withholdings taken out. To be paid directly by your mother's company, you'd have to be set up as a personal business and bill the employer in the UK for your services.

But, because you are performing the services while resident in the US, you will be subject to US taxes. The only way around that is to be on a "temporary" assignment from the UK company - which usually means less than six months. You'd have to maintain your UK residency and return to the UK at the end of the assignment.
Cheers,
Bev


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## uketernity (Sep 20, 2012)

That is exactly what I'd plan to do. Now I understand that a B1 in lieu can be used for up to 12 months (unlike the B1 which is max 6 months).

I would maintain residency in the UK, be paid by the UK company, and classify my work as temporary for the duration of the project, likely in the region of 9 months.

Surely this is a valid arrangement.


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## vronchen (Jan 26, 2012)

uketernity said:


> That is exactly what I'd plan to do. Now I understand that a B1 in lieu can be used for up to 12 months (unlike the B1 which is max 6 months).
> 
> I would maintain residency in the UK, be paid by the UK company, and classify my work as temporary for the duration of the project, likely in the region of 9 months.
> 
> Surely this is a valid arrangement.


well, if you are convinced that it is legitimate, there is no one to stop you to apply. there is no set of specific documents that you have to show, the whole B visa category is kind of muddy, and it is up to the CO to evaluate your case and decide to issue you a visa or not. And then it is up to the officer at the POE to allow you admission and decide on the duration of admission (regardless of what your visa says, the officer at the POE can issue a shorter stay). you have been warned about the implications of a denied visa for future travel under VWP. compliance with the visa requirements can also have an effect of future visa applications (such as H1b). 
PLease, keep us posted about the CO and POE decisions. I am really curious if any "special case" B1's are issued after what has happened in the last year.


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