The DOS has responded to concerns raised by Sen. Charles E. Grassley (R-IA) about the misuse of the "B-1 in lieu of H-1B" provision by foreign employers to send low-skilled and low-wage workers to the United States on a B-1 visa in order to avoid the H-1B visa cap and prevailing wage restrictions. The provision, set forth in the Foreign Affairs Manual, allows foreign workers, who should be entering on an H-1B visa, to obtain a B-1 visa if they are employed by a foreign company who is paying them to work at a U.S. client of that foreign company.
In an 14 April 2011 letter addressed to DOS and DHS, Sen. Grassley referenced a complaint filed by a U.S. employee of Infosys Technologies Limited, Inc. (Infosys). The complaint alleges that Infosys sent low-wage Indian workers to the United States as B-1 business visitors with the stated purpose to attend meetings, but upon arrival the workers were actually given paid positions in a U.S. company. Concerned about the impact on the number of jobs available to U.S. workers, Sen. Grassley requested, among other information, the number of B-1 visas that have been issued in lieu of H-1B visas, the names of U.S. companies hosting these visa holders, and details about safeguards and penalties that have been implemented to curb visa misuse.
In a letter dated 13 May 2011, DOS responded that they are working with DHS to decide whether to amend or eliminate the policy, and noted that any change decided upon will not be implemented for some time. DOS noted that the Infosys litigation seemed to be a product of misrepresentation in the visa applications. DOS explained that fraud detection units are currently stationed at each consular post to screen visa applicants and that purported employees from large companies suspected of misrepresentation are particularly scrutinized in the application process. Further, DOS stated that the actual number of B-1 visas that have been in lieu of H-1B visas is uncertain, but estimated that in India less than 1,000 of these visas are issued each year.