US agency moves forward to eliminate use of biz visa in lieu of H-1B visas

MUMBAI: The US Department of State has proposed a revision to the B-1 (business visitor) visa regulations to eliminate the option for use of this visa, ‘in lieu of the H-1B’ work visa, commonly referred to as ‘BILOH’.
TOI in its coverage of the Trump administration's Spring agenda, issued in July, had indicated that this proposal would be issued by October end. However, as this proposal is open for public comments for a 60-day period, and the comments will be reviewed, it will be some months before it is finalised and implemented.
B-1 visa holders are prohibited from engaging in productive employment in the US. However, the Foreign Affairs Manual (FAM) of the Department of State permits use of the B-1 visa in limited circumstances by foreign nationals who would otherwise qualify for H-1B visa and are entering the US to perform short term services while remaining on the payroll of a foreign entity (say an Indian company).
Mitch Wexler, California based partner, at Fragomen, a global immigration law firm explains that while the BILOH concept has existed for many years, it has been the subject of debate.
Both the State Department and the US Customs and Border Protection have increasingly scrutinised BILOH visa applications and entries to the US in recent years.
With the proposed amendments such an option would no longer be available. The Department of State estimates that up to 8,000 foreigners benefitted annually from the BILOH concept.
In an advance copy of the proposal which will be shortly published in the Federal Register, the Department of State illustrates the possible misuse of the BILOH.
An employer in Silicon Valley could legally pay a computer network architect in B-1 status the minimum wage of $15 per hour, whereas the same employer would be required to pay a computer network architect in H-1B status the prevailing wage of at least $40.88 per hour.
By amending the regulation, the Department of State believes that any perceived grey areas will be removed. This will protect the economic interests of American workers and strengthen the integrity of the B-1 visa program.
US entities that previously may have paid less than the prevailing wage for services in a specialty occupation performed by foreign nationals who travelled to the US on a B-1 visa issued on the basis of the outdated regulatory language or under the BILOH policy. Such entities would be compelled to align their business practices once the proposal is finalised, states the advance copy of the proposal.