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B1 in lieu of H1 while H1B application is pending

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  • B1 in lieu of H1 while H1B application is pending

    If my new employer doesn't want to wait until October for me to start my job, can I apply for a B1 in lieu of H1, and start the job, being paid by their overseas office? If so can I tell the CBP agent that the company plans to apply for an H1B when I arrive in the US on the B1 in lieu of H1 visa?

  • #2
    Originally posted by sille View Post
    If my new employer doesn't want to wait until October for me to start my job, can I apply for a B1 in lieu of H1, and start the job, being paid by their overseas office?
    I would not suggest that & its not legal either.
    Originally posted by sille View Post
    If so can I tell the CBP agent that the company plans to apply for an H1B when I arrive in the US on the B1 in lieu of H1 visa?
    You'll be deported immediately.
    - I am not an Attorney, hence not giving any legal advice. Just sharing MY opinion with an intent to help others.

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    • #3
      Originally posted by Libra_14 View Post
      I would not suggest that & its not legal either.

      You'll be deported immediately.
      Thanks for the reply. You're allowed to work on a B1 in lieu of H1 visa as long as you're not paid by the company in the US, so why do you say it's not legal? And an H1B is still a non-immigrant visa so why would telling them the company had filed the application (when it was true) get me deported?

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      • #4
        Originally posted by sille View Post
        Thanks for the reply. You're allowed to work on a B1 in lieu of H1 visa as long as you're not paid by the company in the US, so why do you say it's not legal? And an H1B is still a non-immigrant visa so why would telling them the company had filed the application (when it was true) get me deported?
        B1 is not a work visa - so you are not allowed to "work" at all - in fact you cannot even attend job interview on B1 visa. Secondly, when you land in USA, the first question will be the purpose of visit. To answer that question, you'll need to be on payroll of an outside USA company & say you are visiting your parent organization or client.

        H1 is a dual-intent visa (you can have long term intention to stay in USA). But B1 is not & you'll need to say that you'll return. By saying CBP officer that your organization is going to file your H1, they will immediately deport you.
        - I am not an Attorney, hence not giving any legal advice. Just sharing MY opinion with an intent to help others.

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        • #5
          Originally posted by Libra_14 View Post
          B1 is not a work visa - so you are not allowed to "work" at all - in fact you cannot even attend job interview on B1 visa. Secondly, when you land in USA, the first question will be the purpose of visit. To answer that question, you'll need to be on payroll of an outside USA company & say you are visiting your parent organization or client.

          H1 is a dual-intent visa (you can have long term intention to stay in USA). But B1 is not & you'll need to say that you'll return. By saying CBP officer that your organization is going to file your H1, they will immediately deport you.
          This is incorrect. A B1 in lieu of an H1 visa (as opposed to a regular B1 visa) does allow the holder to do H1B level work temporarily, as long as they're not paid by a company in the US. My question was whether this could be used as a stopgap ahead of getting a regular H1B visa if I'm paid by the office in the country I'm moving from. I have seen articles by immigration lawyers who say the B1 in lieu of H1 visa allows companies to bring in employees when they can't wait until October to get the work done, but it was unclear if they were referring to the same employees who would be getting the H1.

          People who don't know what a B1 in lieu of an H1 visa is should refrain from responding.

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          • #6
            Originally posted by sille View Post
            This is incorrect. A B1 in lieu of an H1 visa (as opposed to a regular B1 visa) does allow the holder to do H1B level work temporarily, as long as they're not paid by a company in the US. My question was whether this could be used as a stopgap ahead of getting a regular H1B visa if I'm paid by the office in the country I'm moving from. I have seen articles by immigration lawyers who say the B1 in lieu of H1 visa allows companies to bring in employees when they can't wait until October to get the work done, but it was unclear if they were referring to the same employees who would be getting the H1.

            People who don't know what a B1 in lieu of an H1 visa is should refrain from responding.
            Good on you for doing your own research instead of relying on a user who doesn't fact check before responding. I would recommend speaking with your companies legal department and asking them because they would have more experience with this type of situation
            This is strictly an opinion and should not be misconstrued as legal advice. The use of this information is strictly at your own risk.

            -Krypton9591

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            • #7
              Originally posted by krypton9591 View Post
              Good on you for doing your own research instead of relying on a user who doesn't fact check before responding. I would recommend speaking with your companies legal department and asking them because they would have more experience with this type of situation
              Thanks Krypton. I haven't received an offer yet but there have been indications that I'm a top candidate. I'm worried that the visa issue may make them go another way so was trying to find out if this was an option, to offer it as a suggestion to bridge the gap. From what I've read, many people (including companies), and even CBP agents, aren't aware that this even exists. Unfortunately, I've so far not found anything conclusive but I'll keep digging! I might also see if I can surreptitiously ask my current employer's US office, hopefully without getting myself fired in the process!

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              • #8
                Originally posted by sille View Post

                Thanks Krypton. I haven't received an offer yet but there have been indications that I'm a top candidate. I'm worried that the visa issue may make them go another way so was trying to find out if this was an option, to offer it as a suggestion to bridge the gap. From what I've read, many people (including companies), and even CBP agents, aren't aware that this even exists. Unfortunately, I've so far not found anything conclusive but I'll keep digging! I might also see if I can surreptitiously ask my current employer's US office, hopefully without getting myself fired in the process!
                Hi Sille,

                Good on you to do the research and post this. I've been doing a lot of digging around on this subject the last two weeks or so - the itch to move to sunny California has got me in earnest! Am a British Citizen looking to move to California on an EB-3 Green Card, and am looking for an employer to sponsor me on a (hopefully!) decent job there. Only thing is, no employer would be willing to wait till my EB-3 visa goes through DoL PERM certification process, then USCIS processing and then Consulate processing here in London before I can join the job.. so what to do?

                The B1 in lieu of H1B is the only option I can think if an interview works out for me in the next few months this year (2019) as it's too late for the H1B lottery this year anyway. Once I'm there and working - as a representative of my UK limited company, so the USA employer would in effect be in contract with my UK limited company and no monies would be paid to me direct by the USA employer, either in the USA or anywhere else for that matter (I am contracting through my limited company here in the UK anyway at this time) - so once I'm there and working, the EB-3 process could be started, and if that takes too much time then come next April the H1B could be applied for as well.

                Any of the gurus here shed come light on this plan?

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