Just a few weeks ago, 15 Russian engineers employed by Boeing’s Moscow Design Center, who were travelling to the United States to perform services for Boeing, were denied entry by Customs and Border Protection (“CBP”) at the Seattle Tacoma International Airport. While all of the facts are not clear, it appears that the engineers were seeking entry pursuant to the “B-1 in lieu of H-1B” category, which permits professionals who are employed abroad to come to the United States for a short period to perform services for a U.S. entity. These professional visitors must remain on the payroll of their foreign employers and are not permitted to receive any remuneration from any U.S. source. However, they may be reimbursed for out-of-pocket expenses by the U.S. employer.
For a number of years, the B-1 in lieu of H-1B category has been under attack by a number of sources, including some members of Congress and powerful unions. The barring of the Russian engineers is illustrative of the intense scrutiny being given to this category. As a practical matter, relying on the B-1 in lieu of H-1B category is a risky strategy given that the US immigration inspectors at the airports and US consular officers at the consular posts abroad rely on three different immigration manuals that differ on the general acceptance of this category. Specifically, the Department of Homeland Security’s Inspector’s Field Manual does not recognize the B-1 in lieu of H-1B category, whereas its Operations Instructions and the Department of State’s Foreign Affairs Manual both do. It makes little sense for three manuals that guide our government agencies (and which are routinely relied upon by consular officers and immigration inspectors) not to be in agreement on this issue. Given the unpredictability and the fact that CBP’s admission decisions are not reviewable, it makes sense to consider other visa options that clearly authorize work in the United States, such as the H-1B or L-1. In any event, careful counseling and analysis is the key to prudent decision-making in deciding whether to rely on the B-1 in lieu of H-1B category.