Visas: Temporary Visitors for Business or Pleasure, 66878-66888 [2020-21975]
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66878
Proposed Rules
Federal Register
Vol. 85, No. 204
Wednesday, October 21, 2020
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
DEPARTMENT OF STATE
22 CFR Part 41
[Public Notice 11221]
RIN 1400–AE95
Visas: Temporary Visitors for Business
or Pleasure
Department of State.
Notice of proposed rulemaking.
AGENCY:
ACTION:
The Department of State
(‘‘Department’’) proposes to amend its
regulation governing nonimmigrant
visas for temporary visitors for business,
the B–1 nonimmigrant visa
classification, by removing two
sentences defining the term ‘‘business’’
that are outdated due to changes in the
INA since 1952, from when the two
sentences originate. With removal of
these sentences, the Department would
no longer authorize issuance of B–1
visas for certain aliens classifiable as H–
1B or H–3 nonimmigrants, commonly
referred to as the ‘‘B–1 in lieu of H’’
policy, unless the alien independently
qualifies for a B–1 visa for a reason
other than the B–1 in lieu of H policy.
DATES: Written comments must be
received on or before December 21,
2020.
SUMMARY:
You may submit comments,
identified by RIN 1400–AE95, by either
of the following methods:
• Internet (preferred): At
www.regulations.gov, you can search for
the document using [Docket Number
DOS–2020–0041] or using the proposed
rule RIN 1400–AE95.
• Email: Megan Herndon, Senior
Regulatory Coordinator, Office of Visa
Services, Bureau of Consular Affairs,
U.S. Department of State, VisaRegs@
state.gov.
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ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
Megan Herndon, Senior Regulatory
Coordinator, Office of Visa Services,
Bureau of Consular Affairs, Department
of State, 600 19th St. NW, Washington,
DC 20006, (202) 485–7586.
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Public Participation
All interested parties are invited to
participate in this rulemaking by
submitting written views and comments
on all aspects of this proposed rule.
Comments must be submitted in English
or an English translation must be
provided. Comments that will provide
the most assistance to the Department of
State in implementing this change will
reference a specific portion of the
proposed rule, explain the reason for
any recommended change, and include
information that supports the
recommended change.
Instructions: If you submit a
comment, you must include the agency
name and RIN 1400–AE95 for this
rulemaking in the title or body of the
comment. Regardless of the method
used for submitting comments or
material, all submissions will be posted,
without change, to the Federal
eRulemaking Portal at https://
www.regulations.gov, and will include
any personal information you provide.
Therefore, because all submissions will
be public, you may wish to consider
limiting the amount of personal
information that you provide in any
voluntary public comment submission.
The Department of State may withhold
from public viewing information
provided in comments that it
determines may infringe privacy rights
of an individual or is offensive. For
additional information, please read the
Privacy Act notice available in the
footer at https://www.regulations.gov.
SUPPLEMENTARY INFORMATION:
I. What changes to 22 CFR 41.31 does
the Department propose?
The Department proposes to eliminate
two sentences from its regulation
governing nonimmigrant visitors for
business, 22 CFR 41.31(b)(1). The
current regulation, in the paragraph
defining ‘‘business,’’ includes the
statement, ‘‘An alien seeking to enter as
a nonimmigrant for employment or
labor pursuant to a contract or other
prearrangement is required to qualify
under the provisions of 22 CFR 41.53,’’
which is the regulation governing H
nonimmigrant temporary workers or
trainees. The Department proposes to
remove this language, as explained
below, because, as the regulation states
explicitly, ‘‘business,’’ as used in
section 101(a)(15)(B) of the Immigration
and Nationality Act (‘‘INA’’), 8 U.S.C.
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1101(a)(15)(B) ‘‘does not include local
employment or labor for hire,’’ so the
referenced statement is confusing and
potentially misleading. For the same
reasons, the Department also proposes
to eliminate from the current regulation
the statement, ‘‘An alien of
distinguished merit and ability seeking
to enter the United States temporarily
with the idea of performing temporary
services of an exceptional nature
requiring such merit and ability, but
having no contract or other pre-arranged
employment, may be classified as a
nonimmigrant temporary visitor for
business.’’
II. Why is the Department proposing
this rule?
A. Statutory Framework
The Department’s proposal conforms
the regulation with changes in the
Immigration Act of 1990 (‘‘IMMACT
90’’),1 the Miscellaneous and Technical
Immigration and Naturalization
Amendments of 1991 (‘‘MATINA’’),2
and the American Competitiveness and
Workforce Improvement Act of 1998
(‘‘ACWIA’’).3 The two sentences the
Department proposes to eliminate from
22 CFR 41.31 date back to 1952, prior
to enactment of these laws. See 22 CFR
41.40 (1952) (added by 17 FR 11574,
Dec. 19, 1952). They no longer reflect
the statutory framework governing
nonimmigrants.
The primary statute governing the
requirements for B visa classification is
the Immigration and Nationality Act
(‘‘INA’’) of 1952, as amended.4 The
Department’s proposal takes into
account the amendments to the INA
effected by IMMACT 90, MATINA, and
the ACWIA.
The statutory language authorizing
the issuance of visas to temporary
visitors for business (B–1
nonimmigrants) or pleasure (B–2
nonimmigrants) has remained
unchanged since the 1952 Act. The B
visa classification applies to temporary
visitors for business or for pleasure and
excludes individuals coming for the
1 Public
Law 101–649, 104 Stat. 4978 (1990).
Law 102–232, 105 Stat. 1733 (1991).
3 Omnibus Consolidated and Emergency
Supplemental Appropriations Act, 1999, Public
Law 105–277, div. C. tit. IV, 112 Stat. 2681–642
(1998).
4 Reference to the ‘‘1952 INA’’ or ‘‘1952 Act’’
refers to the original Immigration and Nationality
Act of 1952, Public Law 82–414, 66 Stat. 163 (June
27, 1952).
2 Public
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purpose of study or of performing
skilled or unskilled labor or as a
representative of foreign press, radio,
film, or other foreign information media
coming to engage in such vocation.
See INA section 101(a)(15)(B), 8 U.S.C.
1101(a)(15)(B).
Under the 1952 Act, the H
nonimmigrant classification pertained
to individuals of distinguished merit
and ability and who is coming
temporarily to the United States to
perform temporary services of an
exceptional nature requiring such merit
and ability; coming temporarily to the
United States to perform other
temporary services or labor, if
unemployed persons capable of
performing such service or labor cannot
be found in the United States; or (iii)
who is coming temporarily to the
United States as an industrial trainee.
See INA section 101(a)(15)(H), 8 U.S.C.
1101(a)(15)(H) (1952).
IMMACT 90, as amended by the
MATINA, created new nonimmigrant
classifications, including two
nonimmigrant classifications for certain
aliens with extraordinary ability in the
sciences, arts, business, or athletics and
certain artists and entertainers, the O
and P classifications.5 Many such aliens
were previously classified as H–1
nonimmigrants, corresponding to INA
section 101(a)(15)(H)(i), 8 U.S.C.
1101(a)(15)(H)(i) (1952). Since INA
section 101(a)(15)(H), 8 U.S.C.
1101(a)(15)(H) was not originally
designed to address these classes of
activities, Congress determined that
they should be separated from that
classification and treated
independently.6 Most professional
athletes and entertainers coming to the
United States to work in their
professions fall within the scope of
these O and P classes under current law.
All aliens applying for an O or P
nonimmigrant visa as a principal alien
require a petition approved by DHS
prior to applying for a visa.
In addition to creating the O and P
nonimmigrant classifications, IMMACT
90 and the MATINA amended the INA
with regard to the H–1 classification for
5 Nonimmigrant visas in the O classification are
for certain aliens with extraordinary ability in
sciences, arts, education, business or athletics, or a
demonstrated record of achievement in the motion
picture or television industry, as well as certain
support staff and dependents. See IMMACT 90
section 207(a), INA section 101(a)(15)(O), 8 U.S.C.
1101(a)(15)(O) and 22 CFR 41.55. See also 8 CFR
214.2(o). Nonimmigrant visas in the P classification
are for certain types of artists and entertainers, as
well as certain support staff and dependents. See
INA section 101(a)(15)(P), 8 U.S.C. 1101(a)(15)(P)
and 22 CFR 41.56. See also 8 CFR 214.2(p).
6 See 136 Cong. Rec. H13203–01 (1990).
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certain temporary workers by, in
relevant part: (1) Restricting H–1B
classification to nonimmigrants coming
temporarily to perform services in a
specialty occupation (as defined in INA
section 214(i)(1), 8 U.S.C. 1184(i)(1)), or
as a fashion model of distinguished
merit and ability; 7 (2) adding the
requirement of a labor condition
application filed with respect to the
nonimmigrant by the intending
employer under INA section 212(n)(1), 8
U.S.C. 1182(n)(1), with the Secretary of
Labor; 8 and (3) limiting the number of
aliens who may be issued H–1B visas or
otherwise provided H–1B nonimmigrant
status during any fiscal year.9
The ACWIA, enacted in 1998, further
amended the INA with respect to H–1
classification by, in relevant part: (1)
Temporarily increasing numerical limits
of H–1 visas; 10 (2) imposing new
restrictions and requirements on H–1dependent employers; 11 (3) instituting a
new regime of penalties for petitioners
whose attestations include
misrepresentations; 12 (4) establishing a
process to review complaints regarding
failures to offer job opportunities to U.S.
workers; 13 and (5) imposing a $500 fee
for certain H–1B petitioners.14
Congress imposed an additional
$2,000 fee in 2010 for certain H–1B
petitioners through Public Law 111–
230, section 402(b), 124 Stat. 2487
(2010). This fee authorization expired
on September 30, 2015, and Congress
subsequently reauthorized and
increased it to $4,000 with the
Consolidated Appropriations Act, 2016,
Public Law 114–113, section 411, 129
Stat. 3006. This fee remains in effect
until Sept. 30, 2025.
B. Policy
The proposed rule would increase
clarity and transparency by removing
confusing and outdated language about
the scope of activity in the United States
that is permissible on a B–1 visa. An
example of the confusion—here to a qui
tam relator—caused by this outdated
language arose recently in United States
ex rel. Krawitt v. Infosys Technologies
7 IMMACT
90, Sec. 205(c)(1).
90, Sec. 205(c)(1), (3). Prior to
IMMACT 90, there was no prevailing wage
requirement or other U.S. labor force protections
concerning H–1B workers. Note that the H–1B
category resulted from the split of the H–1 category
into the H–1A (now defunct) and H–1B categories
through amendments to the INA by the Immigration
Nursing Relief Act of 1989, Public Law 101–238,
103 Stat. 2099 (1989).
9 IMMACT 90, Sec. 205(a).
10 ACWIA, Sec. 411.
11 ACWIA, Sec. 412.
12 ACWIA, Sec. 413a.
13 ACWIA, Sec. 413b.
14 ACWIA, Sec. 414.
8 IMMACT
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66879
Limited, Incorporated, 372 F.Supp. 3d
1078, 1086 (N.D. Cal 2019), in which the
District Court found a fraud complaint
misinterpreted the first sentence the
Department proposes to remove related
to labor pursuant to a contract or other
prearrangement.15 The court’s
interpretation properly highlighted that
this sentence is in fact meaningless,
although it is unclear whether the Court
understood why this was the case.
Reporting from posts abroad indicates
confusion among aliens, attorneys,
consular officers, and DHS officials at
Ports of Entry about the application of
these outdated sentences, specifically as
they apply to the B–1 in lieu of H
policy, described below in section
(II)(D)(ii). Thus, the Department
proposes removing the confusing and
outdated sentences from the regulation.
Removing these two sentences, and
thus removing any question about
whether the referenced employment or
labor might be permissible B–1 activity,
not only conforms the regulation to the
applicable statutory framework, but also
furthers the goals of Executive Order
(‘‘E.O.’’) 13788, Buy American and Hire
American. See 82 FR 18837 (April 21,
2017). That E.O. articulates the
executive branch policy to ‘‘rigorously
enforce and administer’’ the laws
governing entry of nonimmigrant
workers into the United States ‘‘[i]n
order to create higher wages and
employment rates for workers in the
United States, and to protect their
economic interests.’’ Id. sec. 2(b). It
directs federal agencies, including the
Department, to protect U.S. workers by
proposing new rules and issuing new
guidance to prevent fraud and abuse in
nonimmigrant visa programs. Id. sec. 5.
The Department believes that
eliminating any perceived gray area of
acceptable local employment or labor
for skilled foreign workers for the
purpose of B–1 nonimmigrant visa
issuance will better protect U.S.
workers’ economic interests and
strengthen the integrity of the B–1
nonimmigrant visa classification
With greater clarity regarding the
Department’s policy and interpretation
of the law concerning the availability of
15 Krawitt, the qui tam relator, argued that one of
the sentences in 22 CFR 41.31 the Department
proposes to remove (‘‘An alien seeking to enter as
a nonimmigrant for employment or labor pursuant
to a contract or other prearrangement is required to
qualify under the provisions of § 41.53’’) prohibited
two Infosys employees from providing training to
Apple employees in the United States in B–1 status
pursuant to a contract between the two companies.
The court responded that ‘‘Numerous authoritative
sources contradict Krawitt’s reading of the
regulation,’’ but did not offer an alternative reading
of the confusing sentence, apparently giving the
sentence no meaning at all.
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a B–1 nonimmigrant visa for an alien
seeking to engage in local employment
or labor, employers will be on notice
that they must pay prevailing wages for
such labor performed in the United
States, either by hiring a U.S. worker or
by following the procedures established
by Congress for the importation of a
skilled worker in an appropriate visa
category. The Department believes this
will lead to an increase in wages for
U.S. workers, because U.S. entities that
previously may have paid less than the
prevailing wage for services in a
specialty occupation performed by
foreign nationals who traveled to the
United States on a B–1 nonimmigrant
visa issued on the basis of the outdated
regulatory language or under the B–1 in
lieu of H policy (discussed in (II)(B)(2),
below) will be compelled to align their
business practices with the current
statutory scheme and the policy
expressed in this proposal.
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C. Proposed Elimination of Statement
That an Alien Seeking To Enter for
Employment or Labor Pursuant to a
Contract or Other Prearrangement Is
Required To Qualify Under the
Provisions of 22 CFR 41.53
Performance of skilled or unskilled
labor is statutorily impermissible in the
B nonimmigrant visa classification. INA
section 101(a)(15)(B), 8 U.S.C
1101(a)(15)(B). The term ‘‘labor’’ is not
defined in the INA or implementing
regulations,16 for the purpose of the B
nonimmigrant classification. The
statement in the Department’s
regulation that an alien seeking to enter
for employment or labor pursuant to a
contract or other prearrangement is
required to qualify under the provisions
of 22 CFR 41.53 (relating to H visas),
fails to account for the other visa
categories that permit the performance
of labor in the United States (including,
but not limited to the D, E, I, L, O, P,
Q, and R classifications). Additionally,
the requirement is under-inclusive,
because INA section 101(a)(15)(B), 8
U.S.C. 1101(a)(15)(B), prohibits skilled
or unskilled labor in the B
nonimmigrant visa classification
categorically, whether or not pursuant
to a contract or other prearrangement.
Because skilled and unskilled labor on
a B visa are already generally prohibited
by statute, the Department believes the
referenced statement is confusing and
misleading and therefore proposes to
16 The
INA, including INA section 212(a)(5)(A)(i),
8 U.S.C. 1182(a)(15)(A)(i) (labor certification
requirement for certain immigrants), and
implementing regulations, such DOL regulations as
20 CFR 655.5 (defining agricultural labor) use the
term labor without defining it.
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remove the sentence from the
regulation.
D. Proposed Elimination of Statement
Regarding Alien of Distinguished Merit
and Ability
1. Proposal as it Relates to Aliens of
Extraordinary Ability in the Sciences,
Arts, Education, Business, or Athletics;
and Athletes, Entertainers, and Artists
Seeking Nonimmigrant Visas Relative to
Their Professions
The Department proposes to eliminate
the provision in 22 CFR 41.31 that
currently provides that ‘‘[a]n alien of
distinguished merit and ability seeking
to enter the United States temporarily
with the idea of performing temporary
services of an exceptional nature
requiring such merit and ability, but
having no contract or other prearranged
employment, may be classified as a
nonimmigrant temporary visitor for
business.’’ This language has remained
unchanged since 1952. See 22 CFR
41.40(b) (1952) added by 17 FR 11475
(Dec. 19, 1952)). Notwithstanding this
regulatory language, the Department has
long interpreted ‘‘business’’ activities
permissible in the B–1 classification to
exclude the activities of members of the
entertainment profession seeking to
perform services within the scope of
their profession. For example, an
acclaimed singer and accompanying
musicians seeking to enter the United
States to perform a concert in a stadium
in the United States would be required
to obtain O or P visas, after filing a
petition with U.S. Citizenship and
Immigration Services (USCIS), and
would not be eligible for a B–1 visa for
this purpose, as the existing regulation
suggests.
The Department’s interpretation of
‘‘business,’’ with respect to entertainers,
dates back to the 1960s or 1970s, well
before enactment of IMMACT 90, but
the oldest published guidance currently
available to the Department is from
August 30, 1987, stating ‘‘[o]rdinarily, a
member of an entertainment occupation
who seeks to enter the United States
temporarily to perform services,
whether or not the services will involve
public appearance and regardless of the
amount or source of compensation, will
be accorded the appropriate H–1
classification.’’ 17 Because this guidance
was promulgated prior to the enactment
of IMMACT 90, H–1 was the
appropriate classification for aliens
17 9 FAM 41.31, Notes, N7.1 (TL:VISA–2, August
30, 1987). In the intervening decades, this guidance
has become more nuanced to reflect certain
situations where services in an entertainment
profession are consistent with B–1 visa
classification, as described in the following
paragraphs and associated footnotes.
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performing such services. Under
IMMACT 90’s targeted standards and
procedures for professional entertainers,
such performers would fall in the O and
P categories. Notably, the 1987
guidance, which steers members of the
entertainment profession away from B
visas, is consistent with current FAM
guidance; 18 the proposal serves to bring
the regulation in line with the
Department’s long-standing policy.
Therefore, with respect to entertainers
of distinguished merit and ability who
seek to perform in the United States, the
Department does not expect that
removing this language from the B
nonimmigrant visa regulation will have
any impact on visa issuance, because
the statement does not align with
current practice.19
While there is limited case law
directly interpreting ‘‘business’’ as
related to athletes, entertainers, and
artists seeking to perform services
within the scope of their professions,20
18 9 FAM 402.2–5(G) states that, with limited
exception not affected by this proposal, ‘‘B visa
status is not appropriate for a member of the
entertainment profession (professional entertainer)
who seeks to enter the United States temporarily to
perform services. Instead, performers should be
accorded another appropriate visa classification,
which in most cases will be P, regardless of the
amount or source of compensation, whether the
services will involve public appearance(s), or
whether the performance is for charity or a U.S.
based ethnic society.’’ This proposal would not
affect existing Department guidance on the
situations in which professional entertainers and
artists may be classified B–1, such as participants
in cultural programs performing before a nonpaying
audience and being paid by the sending
government. See 9 FAM 402.2–5(G)(1)–(5).
19 This proposal would not affect Department
guidance to consular officers with regard to amateur
athletes and entertainers. Under 9 FAM 402.2–
4(A)(7), a person who is an amateur in an
entertainment or athletic activity is, by definition,
not a member of any of the profession associated
with that activity. An amateur is someone who
normally performs without remuneration (other
than an allotment for expenses). A performer who
is normally compensated for performing cannot
qualify for a B–2 visa based the provisions of 9
FAM 402.2–4(A)(7) even if the performer does not
make a living at performing, or agrees to perform
in the United States without compensation. Thus,
an amateur (or group of amateurs) who will not be
paid for performances and will perform in a social
and/or charitable context or as a competitor in a
talent show, contest, athletic event, or other similar
activity is eligible for B–2 classification, even if the
incidental expenses associated with the visit are
reimbursed.
This proposal would not change this
understanding.
In proposing to remove this provision from the
regulation, the Department recognizes that aliens of
‘‘distinguished merit and ability’’ in areas other
than athletics, entertainment, and art may also be
impacted. To the extent the proposal to eliminate
this section overlaps with the proposal to eliminate
the B–1 in lieu of H policy, see the discussion
immediately below.
20 The Board of Immigration Appeals held that a
professional dancer was not eligible to enter the
United States to fulfill a 6 month dancing contract
as a temporary visitor for business in In the Matter
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the Department’s interpretation is
consistent with case law interpreting
‘‘business’’ more generally. The Board of
Immigration Appeals has repeatedly
held that ‘‘business,’’ as used in INA
section 101(a)(15)(B), 8 U.S.C.
1101(a)(15)(B), does not include
ordinary labor for hire or local
employment of a continuing nature, the
extension of professional practice to the
United States, or the regular
performance of services in the United
States not performed as an incident to
any international commercial activity.
See, e.g., Matter of Neill, 15 I. & N. Dec.
331, 334 (BIA 1975) (extending
professional engineering practice to the
United States was not permissible for
the B nonimmigrant classification);
Matter of G—, 6 I. & N. Dec. 255, 258
(BIA 1954) (holding that employment of
a continuing nature as a receiving clerk
and truck loader in the United States
was not permissible B–1 activity even
when the alien maintained a residence
in Canada which he had no intent of
abandoning and was paid entirely by
the Canadian company); compare Matter
of Duckett, 19 I. & N. Dec. 493, 498 (BIA
1987) (holding professional services
regularly performed in the United States
permissible B–1 activity because the
function was a necessary incident to
international trade).
The Department’s existing guidance to
consular officers provides some
scenarios in which professional athletes,
artists, and entertainers may qualify for
B–1 visas for the purpose of performing
services within the scope of their
professions. These examples extend the
reasoning of administrative decisions
interpreting the scope of permissible B–
1 activity to situations consular officers
may encounter and do not rely on the
regulatory language the Department
proposes to remove; thus, these
purposes of travel would not be affected
by this proposal. For example, 9 FAM
402.2–5(C)(4) paragraph b explains that
athletes or team members who seek to
enter the United States as members of a
foreign-based team in order to compete
with another sports team are eligible for
B–1 visas, provided that the foreign
athlete and the foreign sports team have
their principal place of business or
activity in a foreign country and the
income of the foreign-based team and
the salary of its players are principally
accrued in a foreign country. The
referenced FAM guidance is consistent
with Matter of Hira, 11 I&N 824 (BIA
1965; A.G. 1966), which identifies
relevant factors for B–1 classification as,
among others, the principal foreign
of M—, 2 I. & N. Dec. 240 (BIA 1945), but the
reasoning leading to that conclusion is opaque.
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place of business and the principal
location of accrual of profits abroad.21 A
separate FAM provision, which is also
not affected by this proposal, specifies
that a professional entertainer may be
classified B–1 if the entertainer (1) is
coming to the United States to
participate only in a cultural program
sponsored by the sending country; (2)
will be performing before a nonpaying
audience; and (3) all expenses,
including per diem, will be paid by the
member’s government. 9 FAM
402.2(G)(1). These criteria also align
with the Attorney General’s
interpretation in Matter of Hira.
The Department’s proposal seeks to
bring the regulations into conformity
with Department practice with respect
to athletes, entertainers, and artists by
removing the one sentence of regulatory
language that has been superseded by
Congress through the passage of
IMMACT 90. Therefore, the Department
does not expect that removing this
language from the regulation will
impact visa issuance with respect to
athletes, entertainers, and artists of
distinguished merit and ability who
seek to compete or perform in the
United States.
2. Proposal as It Relates to B–1 in Lieu
of H Nonimmigrant Visas
Following elimination of the two
outdated and misleading sentences from
the regulation, there will be less
confusion about whether the
Department might permit B visa
issuance for aliens seeking to engage in
local employment, including labor
appropriately classified as H–1B or H–
3 activities. Employers, foreign workers,
immigration attorneys, or others may
have erroneously believed that such
activity has been permissible for B–1
nonimmigrant visa issuance, in some
cases, under a visa policy referred to as
the B–1 in lieu of H policy. Agency
guidance to consular officers on this
policy, currently in 9 FAM 402.2–5(F),22
will be withdrawn if the rule is
finalized. Like the confusing and
outdated regulatory language described
21 9 FAM 402.2–5(A) paragraph b explains the
facts of Matter of Hira and its relevance to consular
officers’ determination of appropriate B–1 activity.
It explains that in some situations, it can be difficult
to distinguish between appropriate B–1 business
activities, and activities that constitute skilled or
unskilled labor in the United States that are not
appropriate on B status. Hira involved a tailor
measuring customers in the United States for suits
to be manufactured and shipped from outside the
United States. The decision stated that this was an
appropriate B–1 activity, because the principal
place of business and the actual place of accrual of
profits, if any, was in the foreign country.
22 See 9 FAM 402.2, available at https://
fam.state.gov/FAM/09FAM/09FAM040202.html
(last accessed October 14, 2020).
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above, the Department also seeks to
terminate the B–1 in lieu of H policy, for
reasons of law and policy. Eliminating
the regulatory language described above
and eliminating the FAM guidance
supporting the B–1 in lieu of H policy
will make clear that foreign workers
seeking to engage in local employment
or labor for hire must follow the
procedural requirements enacted by
Congress to protect U.S. workers.
Temporary visits for business activities
that are consistent with Matter of Hira
will still be permissible purposes for B–
1 visa issuance under this proposal.
Aliens seeking to engage in such
business activities will qualify for B–1
visa classification if their purpose of
travel is consistent with the B–1 visa
classification, irrespective of whether
the applicant might qualify for an H
visa. The Department believes this
clarification will strengthen the integrity
of the B–1 program and better align its
regulation and guidance for consular
officers with the statutory framework,
administrative case law, and visa policy.
Under INA section 101(a)(15)(B), 8
U.S.C. 1101(a)(15)(B), aliens coming to
the United States to perform skilled or
unskilled labor are not eligible for B–1
nonimmigrant classification. The Senate
Report accompanying the Immigration
and Nationality Act of 1952 (S. Rept.
No. 1515), p. 525, cited Karnuth v.
United States, 279 U.S. 231 (1929), to
indicate that ‘‘visitor for business’’ does
not include a visitor coming to perform
labor for hire, especially given the
congressional intent of the 1924 Act ‘‘to
protect American labor against the
influx of foreign labor.’’ Id. at 243–44.
In addition to carrying over that
principle from the Immigration Act of
1924, Congress in the 1952 Act added a
new nonimmigrant visa classification,
the H classification, designed for
temporary foreign workers to meet the
needs of employers in the United States.
See INA section 101(a)(15)(H), 8 U.S.C.
1101(a)(15)(H). As noted above, in 1952,
the H nonimmigrant classification was
divided between ‘‘aliens of
distinguished merit and ability’’ coming
temporarily to the United States to
‘‘perform temporary services of an
exceptional nature requiring such merit
and ability’’ (H–1); other skilled or
unskilled aliens to perform other
temporary services or labor, if
unemployed persons capable of
performing such service or labor cannot
be found in the United States (H–2); and
trainees (H–3). All three H
nonimmigrant sub-categories required a
petition approved by the former
Immigration and Naturalization Service
(INS) to establish eligibility for the
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classification, and a labor market test
was required for the H–2 nonimmigrant
classification. The B–1 in lieu of H
policy arose in the context of this
framework in the 1960s.
The B–1 in lieu of H policy was
adopted jointly by the INS and the
Department’s Visa Office in the 1960s.
See The Proposed Restriction of the ‘‘B–
1 in Lieu of H–1’’ Concept, Bernsen, 70
No. 35 Interpreter Releases 1189, Sept.
13, 1993. The purpose was to reduce
unnecessary paperwork and facilitate
international travel by eliminating the
requirement for filing H–1 and H–3
petitions for cases within the purview of
the concept, so that the alien could
apply for a visa without any intervening
INS action, in a one-step procedure.23 Id.
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a. B–1 in Lieu of H–1B
In proposing elimination of B–1 in
lieu of H, which is related to the two
sentences proposed for elimination, the
Department finds that visa policy has
lagged behind changes to the INA since
the policy was first adopted. The
Department’s past failure to align its
regulations with the statutory
framework has created confusion about
the limits of permissible activity on a B
visa. Section 205 of IMMACT 90
amended the H–1B nonimmigrant
classification in a number of respects.
Among other amendments, it (1)
imposed a numerical limitation on this
classification for the first time; (2)
modified the standard generally
applicable to aliens seeking admission
under the classification from
‘‘distinguished merit and ability’’ to
‘‘specialty occupation’’ as defined in
INA section 214(i)(1); and (3) instituted
a labor condition application
requirement. See INA section
214(g)(1)(A) and section 212(n), 8 U.S.C.
1184(g)(1)(A) and 1182(n). The
amendments made by section 205
expressed Congress’ intent to limit
availability of the H–1B visa
classification in certain respects.
MATINA further amended the H–1B
23 In a version of the FAM available from March
31, 1980, 9 FAM 41.25, note 4.2(c) provided that
‘‘[a]n alien already employed abroad coming to
undertake training who would be classifiable H–3
but who will continue to receive a salary from the
foreign employer and will receive no salary or other
remuneration from a U.S. source other than an
expense allowance or other reimbursement for
expenses incidental to his temporary stay’’ is
classifiable B–1. The H–3 petition process had been
criticized for being too slow. See Nonimmigrant
Business Visas and Adjustment of Status; Hearing
before the Subcommittee on Immigration and
Refugee Policy, Senate Judiciary Committee; Serial
No. J–97–86, December 11, 1981; Preference
System; Hearing before the Subcommittee on
Immigration and Refugee Policy, Senate Judiciary
Committee; Serial No. J–97–83, November 23, 1981.
By March 31, 1980, Department guidance
referenced B in lieu of H–3.
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category to include certain fashion
models, placed conditions on eligibility
for doctors, and narrowed the attestation
requirements for labor condition
applications.
While IMMACT 90 did not alter the
language of INA section 101(a)(15)(B), 8
U.S.C. 1101(a)(15)(B), the changes to the
H–1B classification and the legislative
history indicate that Congress intended
the B–1 classification to be applied
narrowly after enactment. The Senate
report describes the reasoning as
follows: ‘‘For example, the committee
has taken note of, and relied upon, the
reasoning of Bricklayers and Allied
Craftsmen v. Meese, 616 F. Supp. 1387
(N.D. Cal. 1985), with regard to the
proper scope of the B temporary visa
category . . . the committee’s action in
expanding immigration rests on this
understanding of the narrow scope of
the B temporary visa category, and
consequently, the narrow scope of any
implementing operations, instructions,
or regulations.’’ 24
After the passage of IMMACT 90, the
Department and the INS began to
question the appropriateness of
continuing the B–1 in lieu of H policy.
See 91 STATE 312100, reproduced in 68
No. 37 Interpreter Releases 1263, Sept.
30, 1991. The Department proposed to
eliminate the B–1 in lieu of H policy in
an NPRM published in the summer of
1993. 58 FR 40024–30 (July 26, 1993).
INS also published an NPRM proposing
the elimination of the B–1 in lieu of H
policy in the autumn of 1993. 58 FR
58982–88 (Nov. 5, 1993). Neither agency
finalized its rule, although interagency
discussions continued. See 12 STATE
101466, reproduced at 89 No. 42
Interpreter Releases 2013 (Oct. 29, 2012)
(‘‘The B–1 in lieu of H–1B and H–3
guidance in 9 FAM 41.31 N11 is under
review in an interagency process, but
remains in effect until further notice.’’)
While the Department endeavored to
interpret its B–1 in lieu of H policy in
a manner consistent with the statutory
framework, including by limiting the
policy to apply only to those cases that
most clearly met the definition of
24 Immigration Act of 1989; S. Rept. 101–55 on S.
358, June 19, 1989 Congressional Reports: Doc. No.
15- June 19. 1989, page 20. In the Bricklayers case,
the Court struck down an INS operating instruction
allowing admission as a business visitor of an alien
coming to install, service, or repair commercial or
industrial equipment sold by a foreign vendor to a
U.S. purchaser, holding that the instruction was
contrary to the plain language of the INA. The
Ninth Circuit granted a joint motion to limit the
injunction only to aliens coming to perform
building or construction work of the kind
performed by members of the plaintiff union, after
which the parties agreed to dismiss the case. The
validity of the U.S. government’s interpretation of
INA section 101(a)(15)(B) as extending to other
types of skilled labor was never addressed.
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‘‘business’’ set forth in Matter of Hira
and subsequent Board of Immigration
Appeals cases, the resulting changes to
the policy’s parameters were not well
publicized and the relevant regulations
were never updated. Additionally, with
the development of new technology
since the introduction of the B–1 in lieu
of H policy in the 1960s, including
increased standardization of electronic
salary deposits through direct deposit,
the policy has become more subject to
exploitation. For example, a company
can more easily ‘‘pay salaries’’ from
abroad that circumvent the local wage
and hour laws where actual labor is
performed when contracting local labor
for hire in the United States, which
would have been impermissible during
the early days of the B–1 in lieu of H
policy due to restrictions on place of
salary payment. As a result of the
confusing regulatory language, changes
in immigration laws over the years, and
technological advancements, the
Department believes some stakeholders
may have come to believe the B–1 in
lieu of H policy permits issuance of B–
1 visas for broad categories of skilled
labor, notwithstanding the greater
specificity in labor and employmentrelated visa classifications under the
INA, as amended by IMMACT 90. In
light of E.O. 13788, as well as the
numerical restrictions in the H–1B
category, requirements of the labor
condition application, and revised
definition of the H–1B category
contained in IMMACT 90, the
Department is compelled to eliminate
the B–1 in lieu of H policy and end the
confusion that has surrounded it.
Efforts to limit the application of the
B–1 in lieu of H policy have had
unintended consequences, and the
continuation of the policy would not
align with Administration policy. The
requirements of the B–1 in lieu of H
policy outlined in 9 FAM 402.2–5(F),
derived from the reasoning in Matter of
Hira, focus on the physical location of
the employer’s office and the source of
the worker’s remuneration for services
performed in the United States both
being abroad. The Board of Immigration
Appeals identified these factors, among
others, as dispositive of whether the
work in question was impermissible
local employment or permissible
business that is a necessary incident to
international trade or commerce. The
focus on these factors alone might lead
to an incorrect conclusion that skilled
labor is permissible in the B–1
classification, if these factors are met.
To the contrary, the Department does
not believe that a strategically
structured contract between a U.S.
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business and a foreign employer can
provide an acceptable basis for foreign
workers to seek B–1 visas to perform
skilled labor in the United States. Such
an interpretation would undermine the
interests of U.S. workers, the intent of
Congress, and the goals of E.O. 13788.
For these reasons and the reasons stated
above, the Department seeks to end this
longstanding policy, remove the
regulatory sentences supporting it, and
eliminate guidance to consular officers
reflecting the policy.
One example that may illuminate the
implications of retaining the B–1 in lieu
of H policy could be a U.S. architecture
firm seeking protection from rising labor
costs in the United States. The firm
might believe it could lay off its U.S.
architects and contract for the same
professional architectural services to be
provided by a foreign architecture firm.
If the foreign firm sought H–1B visas for
its architects, it would be required to
pay the prevailing wage for architects in
the area of intended employment in the
United States, presumably the same
wage the U.S. architects had been paid,
and meet the other requirements
enacted by Congress to protect U.S.
workers. But under the B–1 in lieu of H
policy, the foreign architects could
ostensibly seek B–1 visas and travel to
the United States to fill a temporary
need for architecture services, so long as
they retained a residence in the foreign
country and continued to receive a
salary, perhaps significantly lower than
what is customary for U.S. architects,
dispersed abroad by the foreign firm (or
under the auspices of a foreign parent or
subsidiary). Under the Department’s
guidance as expressed in 9 FAM 402.2–
5(F), visas could be issued for multiple
architects planning temporary work in
the United States, in certain situations;
however, a foreign employer may
succeed in undermining U.S.
immigration law and policy by rotating
architects between the United States
and the foreign country to effectively fill
the position of one U.S. architect at a
significantly lower cost. If the architects
who intended to perform skilled labor
were ‘‘of distinguished merit and ability
. . . seeking to perform [temporary
architectural services] of an exceptional
nature requiring such merit and ability,’’
one might argue the current regulatory
language suggests this type of labor is a
permissible basis for B–1 nonimmigrant
visa issuance. As this potential outcome
is harmful to U.S. workers and contrary
to administration policy as expressed in
E.O. 13788, and as expressed in
longstanding FAM guidance to consular
officers, the Department seeks to
eliminate guidance that could be
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misunderstood to imply that such an
arrangement might be permissible.
If finalized, this proposal will
eliminate any misconception that the B–
1 in lieu of H policy provides an
alternative avenue for aliens to enter the
United States to perform skilled labor
that allows, and potentially even
encourages, aliens and their employers
to circumvent the restrictions and
requirements relating to the H
nonimmigrant classification established
by Congress to protect U.S. workers.25
The proposed changes and the resulting
transparency would reduce the impact
of foreign labor on the U.S. workforce of
aliens performing activities in a
specialty occupation without the
procedural protections attendant to the
H–1B classification. Specifically, these
procedural protections include the
numerical cap on the H–1B category in
INA section 214(g)(1), 8 U.S.C.
1184(g)(1), which limits the number of
foreign workers permitted to compete
with U.S. workers. There are no such
limits on the number of workers who
may qualify for a B–1 visa under the B–
1 in lieu of H–1B policy. Similarly, the
labor condition application requirement
added to INA section 212(n), 8 U.S.C.
1182(n), by IMMACT 90 requires
employers to make attestations
regarding the wages and working
conditions of H–1B nonimmigrants and
to provide notification to U.S. workers
to mitigate the potential adverse effects
of importing foreign labor through the
H–1B program. In contrast, the
application process for a B–1 visa does
not include similar procedural
requirements to protect U.S. workers.
Further, while Congress required H–1B
employers to pay significant fees to fund
assistance to the U.S. workforce as well
as prevention and detection of fraud
related to skilled labor, employers are
not required to pay comparable fees to
25 The legal proceedings against Indian
information technology company Infosys Limited
provides one public example outside the context of
the B–1 in lieu of H policy of the strong financial
incentives for aliens and their employers to misuse
the B–1 visa to circumvent the requirements of the
H nonimmigrant classification. On December 17,
2019, the California Attorney General announced an
$800,000 settlement against Infosys Limited to
resolve allegations that approximately 500 Infosys
employees worked in California on Infosyssponsored B–1 visas rather than H–1B visas.
According to the Attorney General’s statement, the
misclassification resulted in Infosys avoiding
California payroll taxes and paying workers lower
wages. See https://oag.ca.gov/news/press-releases/
attorney-general-becerra-announces-800000settlement-against-infosys (Last accessed December
26, 2019). The New York Attorney General
announced a $1 million settlement with Infosys
Corporation in June 2017 based on similar claims.
See https://ag.ny.gov/press-release/2017/agschneiderman-announces-settlement-infosysfailing-follow-us-visa-requirements (Last accessed
December 26, 2019).
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employ skilled workers under the B–1
in lieu of H policy. See INA sections
214(c)(9), (12), and 286(s), (v), 8 U.S.C.
1184(c)(9), (12), and 1356(s), (v). To the
extent the current regulatory language
suggests that U.S. employers may seek
foreign workers in the B–1 classification
to perform local employment or labor,
absent the procedural protections for
U.S. workers Congress enacted, this
practice affords lesser protections than
Congress intended for U.S. workers
filling and seeking similar position. The
Department proposes eliminating the B–
1 in lieu of H policy for these reasons,
for greater consistency with U.S. law
and congressional intent, and in
furtherance of the policy expressed in
E.O. 13788, all of which aim to protect
U.S. workers’ economic interests.
To the extent any U.S. entities may
claim its business model relied on the
B–1 in lieu of H policy to pay foreign
skilled workers at rates below prevailing
wages, the Department would note that
consular officers are the sole arbiters of
visa eligibility and no one may
justifiably assume that a visa will be
issued to a particular alien or for a
particular purpose, prior to
adjudication. Any such businesses
could face costs, potentially significant
costs, in conforming their hiring
practices to the statutory scheme
without the benefit of the B–1 in lieu of
H policy. To mitigate harm that might
follow immediate implementation, B–1
visas that are valid when this proposal
is enacted will not be revoked on the
basis of this policy change, and
employers will be able to continue to
benefit from the services of skilled
workers appropriately issued B–1 visas
under the guidance at 9 FAM 402.2–5(F)
in place at the time of visa issuance,
subject to the independent reviews by
DHS at ports of entry. The Department
hereby notifies U.S. businesses that
following the effective date of a final
rule, they no longer will be able to
reference the B in lieu of H policy to
defend obtaining services in a specialty
occupation from workers being paid at
a rate below prevailing wage. The
Department has determined that policy
must be eliminated to better protect U.S.
workers’ economic interests and
strengthen the integrity of the B–1 visa
program, in addition to conforming to
current statutory requirements.
Setting aside legal considerations, the
Department believes that the proposal is
justified as a matter of policy,
notwithstanding any possible reliance
by U.S. entities and other costs to
businesses of aligning the hiring of
skilled foreign workers to the
requirements of the INA, or alternatively
of hiring U.S. workers, because of the
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benefits that this proposed rule provides
U.S. workers, which could be
substantial. In calculating these benefits,
the Department assumes that the wages
paid to workers in the United States in
B–1 status would generally be the
minimum legally permissible, or the
minimum wage in the work location.
Similarly, due to lack of more specific
data, the Department assumes the salary
paid either to H–1B workers or to U.S.
workers in specialty occupations
generally would be the prevailing wage
calculated by the Department of
Labor.26 The gap between this wage and
the local minimum wage could be
significant; for example, 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.
Presumably, the same employer would
need to offer wages at least as high as
the prevailing wage in order to secure
the services of a qualified U.S. worker.
The gap is even larger in Austin, Texas
where the minimum wage is $7.50 per
hour and the prevailing wage for a
computer network architect is at least
$37.15 per hour.27 In enacting IMMACT
90 and requiring employers to pay the
prevailing wage for skilled foreign
workers, Congress determined that the
gains of this policy to U.S. workers, who
would see greater employment
opportunities and higher wages without
the downward pressure from underpaid
foreign workers, outweighed the
associated costs to U.S. employers. The
Department proposes to remove the
outdated regulatory language supporting
the B–1 in lieu of H policy that erodes
the protections for U.S. workers
Congress sought to enact.
b. B–1 in Lieu of H–3
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Likewise, and also taking into account
E.O. 13788, the Department proposes to
eliminate the B–1 in lieu of H–3
26 For H–1B workers, the prevailing wage
calculated by DOL is the minimum legally
permissible wage. INA section 212(n)(1)(A)(i)(II).
The Department of Labor’s website explains that the
prevailing wage rate is the average wage paid to
similarly employed workers in a specific
occupation in the area of intended employment. See
https://flag.dol.gov/programs/prevailingwages, last
accessed January 22, 2020. This is the best available
measure of the salary costs to employers of hiring
a U.S. worker.
27 https://www.minimum-wage.org/, last accessed
November 4, 2019; https://flcdatacenter.com, last
accessed November 4, 2019. Note that the
prevailing wage cited is for workers in a specialty
occupation with the lowest level of experience;
employers are required to pay experienced H–1B
workers a higher prevailing wage.
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policy.28 In addition to limiting the H–
1B program, IMMACT 90 limited the H–
3 program to exclude training programs
‘‘intended primarily to provide
productive employment.’’ The H–3
petition process for trainees requires an
immigration officer to evaluate whether
a training program complies with this
limitation and with applicable
regulations, which limit the total time of
a training program to two years and
contains explicit protections for U.S.
workers. Among other requirements,
petitioners must explain why the
training is required, demonstrate that
the training is not available in the
beneficiary’s country, indicate how the
training will benefit the beneficiary in
pursuing a career abroad, identify the
source of any remuneration the trainee
will receive, and describe any benefit
the petitioner will obtain by providing
the training. See 8 CFR 214.2(h)(7).
As explained in the final rule
establishing H–3 regulatory
requirements, 55 FR 2602, 2618 (Jan. 26,
1990), ‘‘[t]oo often, petitioners who
cannot obtain H–1 or H–2B
classification for workers will submit
petitions for such workers under the H–
3 classification with the intention of
employing them under the guise of a
training program.’’ The aforementioned
final rule was written before the
enactment of IMMACT 90, which
further restricted the H–3 classification
to training programs that are ‘‘not
designed primarily to provide
productive employment.’’ IMMACT 90
section 205(d). While the regulatory
requirements and statutory limitations
discussed above prevented some of this
abuse in the H–3 category, some
employers misused the B–1 in lieu H
policy to bypass the important
protections built into the H–3
classification and described above. The
Department’s proposal ending the use of
B–1 visas for these training programs in
the future, even for trainings of a short
duration, will assist in preventing abuse
of the U.S. immigration system and
protecting U.S. workers’ economic
interests.
For these reasons, the Department
proposes to eliminate the referenced
specific language from 22 CFR
41.31(b)(1), the outdated regulatory
language that supported the B–1 in lieu
of H–3 policy, and the related guidance
at 9 FAM 402.2–5(F).
28 The B–1 in lieu of H policy, as it relates to H–
3s, has historically applied to only H–3 trainees,
therefore the discussion of H–3 is specific to this
type of H–3 nonimmigrant.
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III. Regulatory Findings and Impact
Statements
A. Administrative Procedure Act
The Department is providing 60 days
for public comment on this proposed
rule’s elimination of two sentences in
the regulation and the B in lieu of H
policy.
B. Regulatory Flexibility Act/Executive
Order 13272 (Small Business)
This proposed rule only regulates the
category of individuals who qualify for
B nonimmigrant visas. Businesses have
no petition component for B visas and
are outside the zone of interest of this
rulemaking because the RFA deals with
direct economic impacts on a
substantial number of small entities.
Therefore, a regulatory flexibility
analysis is not required.
C. Unfunded Mandates Reform Act of
1995
The Unfunded Mandates Reform Act
of 1995 (‘‘UMRA’’) is intended, among
other things, to curb the practice of
imposing unfunded Federal mandates
on State, local, and tribal governments.
Title II of the UMRA requires each
Federal agency to prepare a written
statement assessing the effects of any
Federal mandate in a proposed or final
agency rule that may result in a $100
million or more expenditure (adjusted
annually for inflation) in any one year
by State, local, and tribal governments,
in the aggregate, or by the private sector.
This proposed rule does not exceed
the $100 million expenditure in any one
year when adjusted for inflation ($163
million in 2018 dollars), and this
rulemaking does not contain such
mandates. The requirements of Title II
of the Act, therefore, do not apply, and
the Department has not prepared a
statement under the Act.
D. Executive Orders 12866 (Regulatory
Planning and Review) and 13563
(Improving Regulation and Regulatory
Review)
Executive Orders 12866 and 13563
direct agencies to assess the costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). The Department has reviewed
this proposal to ensure consistency with
those requirements. The Department has
not identified any available regulatory
alternative to this proposal that would
meet the Department’s policy of
rigorously interpreting the relevant
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provisions of the INA, including
provisions governing entry into the
United States of workers from abroad.
This proposed rule would not directly
regulate U.S. entities but may have
indirect fiscal effects on those entities
that use the services of foreign workers
in specialty occupations in the United
States in B–1 classification. Aliens
issued visas based on the B–1 in lieu of
H policy must be paid by a foreign
source and are thus generally employed
by a foreign company.29 However, the
purpose of the travel is often to provide
services in a specialty occupation for
one or more U.S.-based clients.
Generally, those U.S. entities might
incur some additional costs if they
instead seek U.S. workers to provide
those services or, alternatively, seek H–
1B or other classification for those
foreign workers.
The Department estimates that this
proposal will affect no more than 6,000
to 8,000 aliens per year, specifically
aliens intending to provide services in
a specialty occupation in the United
States. Since February 22, 2017, the
FAM has required consular officers to
use a specific annotation on the face of
any visa issued on the basis of the B–
1 in lieu of H–1 or B–1 in lieu of H–3
policy. See 9 FAM 402.2–5(F). The
Department searched annotations for
Fiscal Years 2015 through 2019 using
the currently required annotations and
variations of B–1 in lieu of H and found
the following numbers of annotated
visas reflecting B–1 in lieu of H–1 or H–
3: FY 2015: 6,323; FY 2016: 5,739; FY
2017: 6,287; FY 2018: 6,681; FY 2019:
7,940. Because the annotation has been
required since February 2017, data
collected on or after that date is more
reliable than data for earlier periods. It
is likely that data for earlier periods
understated the number of visas issued
on the basis of these policies, so we
estimate annual visa issuance under the
B–1 in lieu of H policy in some years
could have been as high as 8,000. For
purposes of providing baseline
information about potential costs
associated with this proposal, the
Department therefore uses the upper
estimate of 8,000. This is likely an
overestimate because some aliens who
received a B–1 visa under the B–1 in
lieu of H policy would still qualify for
B–1 visas. However, the assessment of
29 The Department’s guidance on the B–1 in lieu
of H policy at 9 FAM 402.2–5(F) prohibits B–1 visa
issuance if the applicant will receive any salary or
other remuneration from a U.S. source other than
an expense allowance or other reimbursement for
expenses incidental to the alien’s temporary stay.
For purposes of this Section, it is essential that the
remuneration or source of income for services
performed in the United States continue to be
provided by the business entity located abroad.
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their qualification for the B–1 visa
classification would not take into
consideration whether they would
qualify for an H visa, but rather whether
the B–1 visa classification is appropriate
for other reasons, like adherence to the
Hira standards.
The Department estimates that up to
28 percent of the approximately 8,000
annual B–1 visa issuances under the B–
1 in lieu of H policy were to aliens who
applied for a visa to perform services in
a specialty occupation for a small entity
in the United States. This estimate is
based on the Department’s analysis of a
sample of 375 of the visa applications
that resulted in visa issuance under the
B–1 in lieu of H policy.30 To determine
whether the alien intended to perform
services for a small U.S. entity, the
Department analyzed the ‘‘U.S. Point of
Contact’’ field on submitted DS–160
applications, the most relevant available
information. The Department does not
collect data on the legal name of the
entity in the United States using the
services to be provided by an alien
applying for a B–1 visa.31 This analysis
showed that a maximum of 106 aliens,
or 28.27% of the sample, listed a U.S.
Point of Contact that was a small entity,
as defined by the Small Business
Administration. This includes 50
applications listing a U.S. Point of
Contact about which the Department
was unable to find sufficient
information to determine whether the
enterprise is small; in order to capture
the maximum possible impact on small
entities, the Department considered all
50 entities with insufficient information
to be small entities.
The Department assumed that the up
to 8,000 aliens benefitting from the B–
1 in lieu of H policy provided services
to a maximum of 8,000 distinct U.S.
entities, though the exact number of
distinct entities potentially indirectly
affected by this proposal is unknown
due to limited data availability, and
because some aliens previously issued a
B–1 visa under the B–1 in lieu of H
policy may continue to qualify for the
30 From the 14,621 total visa applications
approved under the B–1 in lieu of H policy in fiscal
years 2018 and 2019 combined, the Department
randomly selected 375. That sample size was
selected after the Department computed that a
sample size of 374 would provide a 95% confidence
level with 5% error.
31 As noted above, under the Department’s
guidance at 9 FAM 402.2–5(F), aliens issued visas
based on the B–1 in lieu of H policy must be paid
by a foreign source and are thus generally employed
by a foreign company. Thus, while the DS–160
application contains a field for ‘‘Present Employer
or School Name,’’ this field is not useful for
determining the U.S. entity that will use the alien’s
services in the United States, which could be, for
example, a parent, subsidiary, client, supplier, or
business partner of the foreign employer.
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B–1 visa classification after termination
of the policy. Based on the analysis
described above, the Department
estimates that a maximum of 2,262
(28.27% of 8,000) distinct small entities
could be indirectly affected by this
proposal.
U.S. entities seeking services in a
specialty occupation will no longer be
able to acquire those services from
aliens in the United States in B–1
classification pursuant to the B–1 in lieu
of H policy. Some, but not all, of those
services could be performed by
individuals in B–1 status, even after
termination of the B–1 in lieu of H
policy. Otherwise, U.S. entities could
hire U.S. workers. Or, if relevant laborrelated conditions were met, such
entities could seek qualified foreign
workers in H–1B status to perform the
needed services.
In light of the uncertainty and lengthy
wait time to secure H–1B status for a
foreign worker, the Department assesses
that an H–1B is not likely to be a viable
option for many U.S. entities seeking an
alien to perform services in a specialty
occupation that were previously
performed by an alien in B–1 status.
Rather, the Department assesses that
U.S. entities indirectly affected by this
proposal will likely hire U.S. workers to
perform required services in a specialty
occupation previously provided by
aliens in B–1 classification. For those
H–1B petitions that are selected,
approval is not guaranteed. For
example, approval would require that
the U.S. entity have the employeremployee relationship with the alien
that is required for H–1B status.32 Even
those entities whose petitions are
selected in the lottery and approved face
a timeline much longer than the
timeline for securing a B–1 visa under
the B–1 in lieu of H policy. To begin,
the employer must wait until the start
of the next fiscal year for the employee
to start work and, if the early April
deadline for entering the lottery has
already passed, the employee’s start
date will be delayed at least until the
start of the following fiscal year. If a
particular petition is not selected in the
lottery, the employer must wait at least
another year for the employee to start
work.
Due to the labor-related requirements,
uncertainty of selection under the
numerical cap on the H–1B
classification, the long timeline for H–
1B adjudication, and the significant
32 8 CFR 214.2(h)(4)(ii). In contrast, under the
Department’s guidance at under the Department’s
guidance at 9 FAM 402.2–5(F), aliens issued visas
based on the B–1 in lieu of H policy must be paid
by a foreign source and are thus generally employed
by a foreign company.
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paperwork and costs required to
petition for the H–1B classification, the
Department anticipates that the H–1B
classification will not be a viable
alternative for many U.S. entities that
are currently able to obtain the services
of skilled workers under the B–1 in lieu
of H policy. Notwithstanding, the
Department seeks to provide for
informational purposes baseline data
about the potential costs, to aliens and/
or U.S. entities using the services of
such aliens, of seeking H–1B visas.
The Department recognizes that the
costs associated with the H–1B visa are
higher than those associated with a B–
1 visa. See Chart 1 below for a
comparison of common costs. The
Department notes the various costs
associated with the H–1B and B–1 visas
may be paid by different parties and
thus are not directly comparable; for
example, the costs associated with the
nonimmigrant visa application listed in
the first two rows of the chart may be
paid by the alien, a foreign employer (in
the case of a B visa application), or a
U.S. employer (in the case of an H–1B
visa application).
CHART 1
Cost required for B
(or ‘‘No’’ if not required for B)
Cost type
Cost required for H–1B
Nonimmigrant visa application processing fee (non-refundable) ............
Estimated cost of time required to complete nonimmigrant visa application 33.
Filing an I–129, Petition for Nonimmigrant Worker .................................
The American Competitive and Workforce Improvement Act fee (authorized under Sec. 414(c), Division C, of Pub. L. 105–277 for certain H–1B petitioners).
$190 ...............................................
$51.11 ............................................
$160.
$51.11.
$460 * .............................................
$1500 (for certain petitioners with
more than 25 employees).
$750 (for certain petitioners with
25 or fewer employees) *.
$500 * .............................................
No.
No.
$4,000 * ..........................................
No.
$239.80 * ........................................
$220.89 * ........................................
Depending on nationality of applicant.
$2,411.80–$9,311.80 .....................
No.
No.
Depending on nationality of applicant.
$211.11.
Fraud Prevention and Detection Fee (authorized under Sec. 426(a),
Division J, of Pub. L. 108–447 for employers seeking initial H–1B
nonimmigrant status for a foreign worker).
Fee under Public Law 114–113 (temporarily authorized until September 30, 2025 under Sec. 411(b) of Pub. L. 114–113 for H–1B
petitioners that employ 50 or more employees in the United States if
more than 50 percent of these employees are in H–1B, L–1A or L–
1B nonimmigrant status).
Estimated cost associated with completing Form I–129 34 .....................
Estimated cost of time required to complete H–1B petition ...................
Visa reciprocity fees charged by the Department of State (authorized
under INA § 281, 8 U.S.C. 1351).
Minimum Total Costs ..............................................................................
No.
An asterisk (*) indicates that the cost is generally paid by a U.S. entity (the H–1B petitioner), which is not regulated by this proposal, but which
the Department includes for informational purposes.
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The Department estimates the average
time needed to complete and submit a
DS–160, Online Application for
Nonimmigrant Visa, is the same for B
and H nonimmigrant visa applicants,
and therefore there is no additional time
burden to visa applicants under this
proposal.35 The Department estimates
that the average additional time U.S.
petitioners expend on the H–1 visa
process, as compared to what foreign
employers spend on the B–1 visa
process, is 6.384 hours. This is based on
an estimate that completing the I–129,
Petition for Nonimmigrant Worker and
associated supplements related to the H
classification (according to the DHS
supporting statement for the form)
33 See OMB Control Number 1405–0182, available
at https://www.reginfo.gov/public/do/PRAMain.
34 In its Supporting Statement for I–129, Petition
for Nonimmigrant Worker, OMB Control No. 1615–
0009, USCIS included the following paragraph
about the costs of completing Form I–129: ‘‘USCIS
estimates that costs for form preparation, legal
services, translations, required consultations,
document search and generation, and postage to
mail the completed package will vary widely.
USCIS estimates that petitioners will pay an average
of $239.80 per response.’’
35 See OMB Control Number 1405–0182, available
at https://www.reginfo.gov/public/do/PRAMain.
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would take approximately 5.384 hours
and one hour for the Department of
Labor’s Labor Certification Application,
Form 9035/9035E.36 Based on the
weighted average hourly rate used by
DHS of $34.84, the average cost of the
time required to complete an H–1B
petition is $220.89. No petition is
required for B visas. Additionally,
according to the Small Business
Administration, over 90 percent of H–
1B applicants utilize attorneys at fees of
$5000–$10,000. (See email on file with
Visa Office.)
As discussed above, Congress created
certain requirements in the H–1B
program to protect the economic
interests of U.S. workers by ensuring
that wages and working conditions of
H–1B workers are at least as desirable as
those for comparable U.S. workers. By
eliminating the ‘‘B–1 in lieu of H’’
policy and requiring employers to use
the H–1B process to obtain skilled
36 See OMB Control Number 1615–0009 (Petition
for Nonimmigrant Worker); OMB Control Number
1205–0332 (Labor Certification Application),
available at https://www.reginfo.gov/public/do/
PRAMain.
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foreign workers,37 this regulation will
impose upon those employers the costs
of adhering to those protections, or
alternatively of hiring U.S. workers. The
cost associated with hiring a U.S.
worker include paying the employee the
37 The Department recognizes that some U.S.
entities seeking services from aliens in the United
States in B–1 status under the B–1 in lieu of H
policy may alternatively seek visa classifications
other than B or H, depending on the circumstances
of the proposed employment in the United States.
Most employment-based nonimmigrant visa
classifications have narrow eligibility requirements
likely inapplicable to most aliens performing
services in B–1 visa classification. For example, it
is possible some aliens who qualify for B visas
under the B–1 in lieu of H policy may qualify for
L nonimmigrant visas. An alien applying for a L
nonimmigrant visa would need to establish, among
other eligibility requirements, that he or she has,
within three years preceding the time of his or her
application for admission into the United States,
been employed abroad continuously for one year by
a firm, corporation, or other legal entity or parent,
branch, affiliate, or subsidiary thereof, and seeks to
enter the United States temporarily in order to
render services to a branch of the same employer
or a parent, affiliate, or subsidiary thereof, in a
capacity that is managerial, executive, or involves
specialized knowledge. See INA section
101(a)(15)(L), 8 U.S.C. 1101(a)(15)(L); 22 CFR 21.54.
L nonimmigrant visas also require petitions, and
fees and costs that exceed the costs associated with
B nonimmigrant visas.
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prevailing wage and providing other
common benefits such as health
insurance, worker’s compensation, and
unemployment insurance. The
difference between the costs incurred by
employers paying the minimum wage to
nonimmigrant workers in B–1
classification and the costs incurred
under this proposal vary significantly
depending on the proposed work
location. Returning to the two examples
detailed in section (II)(D)(2)(a) above,
and applying the wage rate benefit
multiplier of 1.46 to account for benefits
provided, the increased cost of securing
the services of U.S. worker as a
computer network architect would be
approximately $37.78 per hour in
Silicon Valley and approximately
$42.39 per hour in Austin, Texas. If all
U.S. entities affected by this proposal
seek a U.S. worker to provide services
as an entry level computer network
architect in Silicon Valley, the total
additional annual cost of this proposal
to U.S. employers would be
approximately $604,480,000.38 If all
U.S. entities seek such a worker in
Austin, the total additional annual cost
of this proposal to U.S. employers
would rise to $678,240,000.39
If all U.S. entities affected by this
proposal do not seek another worker but
rather suffer lost productivity
comparable to the wages that would
have been paid to a worker in B–1 status
making the federal minimum wage of
$7.25 per hour, the total additional
annual cost of this proposal would be
$116,000,000.40 This analysis assumes
that every worker admitted in B–1 status
pursuant to a visa issued under the B–
1 in lieu of H policy was admitted for
one year, the maximum period
permitted under 8 CFR 214.2(b)(1), and
worked a normal U.S. work schedule of
40 hours per week for 50 weeks during
that time. Anecdotal evidence indicates
that the total hours worked by aliens
admitted in this category is likely much
less, but the Department does not have
reliable data on typical admission
periods or work weeks for aliens
admitted in this category and includes
the maximum possible cost for full
transparency in keeping with the
purpose of E.O. 12866. The Department
invites comment on this analysis and
the underlying assumptions.
38 This is calculated from $37.78 per hour in
Silicon Valley, California (includes 1.46 wage
multiplier) × 2,000 hours per year × 8,000 workers.
39 This is calculated from $42.39 per hour in
Austin, Texas (includes 1.46 wage multiplier) ×
2,000 hours per year × 8,000 workers.
40 This is calculated from $7.25 per hour (federal
minimum wage) × 2,000 hours per year × 8,000
workers.
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The Department recognizes that
employers may have to offer higher
wages, greater benefits, or improved
working conditions in order to find U.S.
workers to complete the work
previously done by aliens benefitting
from the B–1 in lieu of H policy.
Finally, some employers may forgo
services in a specialty occupation that
were previously provided by aliens in
B–1 status, and may suffer lost
productivity and profits as a result.
However, the Department believes the
benefits of this proposal outweigh those
costs. To the extent U.S. entities may
face increased costs, including those
related to H–1B or other visa
classification requirements, hiring U.S.
workers, or forgone labor, the associated
costs protect the economic interests of
workers in the United States.41
The Department has also considered
this proposed rule in light of Executive
Order 13563 and affirms that this
regulation is consistent with the
guidance therein.
E. Executive Orders 12372 and 13132
(Federalism)
This regulation will not have
substantial direct effects on the States,
on the relationship between the national
government and the States, or the
distribution of power and
responsibilities among the various
levels of government. This proposed
rule does not alter the standards and
procedures for the Department’s
consideration of requests for waiver
recommendations for waiver requests
made by a State Department of Public
Health, or its equivalent. Nor will the
rule have federalism implications
warranting the application of Executive
Orders 12372 and 13132.
F. Executive Order 12988 (Civil Justice
Reform)
The Department has reviewed the
regulation in light of sections 3(a) and
41 This proposal advances the policy of the
executive branch to ‘‘buy American and hire
American.’’ See Section 2 of E.O. 13788, 82 FR
18837 (Buy American and Hire American). Section
3 of E.O. 13788 states the policy of the executive
branch to rigorously enforce and administer the
laws governing entry into the United States of
workers from abroad in order to create higher wages
and employment rates for workers in the United
States, and to protect their economic interests. Id.
One potential benefit of this rule could be the
creation of higher wages and employment rates for
workers in the United States because employers
that previously engaged the services of aliens
admitted under the B–1 classification who are not
subject to the wage and working conditions
requirements and other protections under the H–1B
classification may seek employees in the H–1B
classification who are subject to those requirements,
or may hire U.S. workers. Id. As described above,
Congress required the current costs of seeking
workers in the H–1B classification with the
enactment of IMMACT 90, MATINA, and ACWIA.
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66887
3(b)(2) of Executive Order 12988 to
eliminate ambiguity, minimize
litigation, establish clear legal
standards, and reduce burden.
G. Executive Order 13175 (Consultation
and Coordination With Indian Tribal
Governments)
The Department has determined that
this rulemaking will not have tribal
implications, will not impose
substantial direct compliance costs on
Indian tribal governments, and will not
pre-empt tribal law. Accordingly, the
requirements of Executive Order 13175
do not apply to this rulemaking.
H. Paperwork Reduction Act
This proposed rule does not impose
any new information collection
requirements under the provisions of
the Paperwork Reduction Act, 44 U.S.C.
chapter 35. The Department does not
anticipate that there would be an
increase in paperwork if this proposal is
finalized. The Department
acknowledges that, as discussed above
in Section II(d)(2), one of the reasons
behind the creation of the B–1 in lieu of
H policy in the 1960’s was to reduce
unnecessary paperwork. However,
because of the changes to the statute
since the 1960s, an alien can no longer
qualify for an H–1 visa on the basis of
‘‘distinguished merit and ability,’’ and
the Department no longer considers the
paperwork required for an alien to
perform temporary labor in the United
States under the current statutory
scheme unnecessary in any
circumstances. Given the numerical cap
on H–1B visas, the Department does not
anticipate an increase in respondents
using existing approved information
collections. It is possible that this
regulation would shift application
burden to the H–1B lottery and
application process, but the Department
notes that it is too speculative at this
point to pursue amendments to any
information collections under the
Paperwork Reduction Act. Similarly, to
the extent employers are likely to hire
U.S. workers to replace some B–1 in lieu
of H workers, the Department does not
anticipate that would require any new
information collections.
List of Subjects in 22 CFR Part 41
Administrative practice and
procedure, Aliens, Cultural exchange
programs, Employment, Foreign
officials, Foreign relations, Students,
Visas.
Text of the Proposed Rule
Accordingly, for the reasons stated in
the preamble, the Department proposes
to amend 22 CFR part 41 as follows:
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Federal Register / Vol. 85, No. 204 / Wednesday, October 21, 2020 / Proposed Rules
PART 41—VISAS: DOCUMENTATION
OF NONIMMIGRANTS UNDER THE
IMMIGRATION AND NATIONALITY
ACT, AS AMENDED
1. The authority citation for part 41
continues to read as follows:
■
Authority: 8 U.S.C. 1101; 1102; 1104; 1182;
1184; 1185 note (section 7209 of Pub. L. 108–
458, as amended by section 546 of Pub. L.
109–295); 1323; 1361; 2651a.
2. Revise § 41.31(b)(1) to read as
follows:
■
§ 41.31 Temporary visitors for business or
pleasure.
*
*
*
*
*
(b) * * *
(1) The term ‘‘business,’’ as used in
INA 101(a)(15)(B), refers to conventions,
conferences, consultations and other
legitimate activities of a commercial or
professional nature. It does not include
local employment or labor for hire. For
the purposes of this section building or
construction work, whether on-site or in
plant, shall be deemed to constitute
purely local employment or labor for
hire; provided that the supervision or
training of others engaged in building or
construction work (but not the actual
performance of any such building or
construction work) shall not be deemed
to constitute purely local employment
or labor for hire if the alien is otherwise
qualified as a B–1 nonimmigrant.
*
*
*
*
*
Carl C. Risch,
Assistant Secretary, Consular Affairs,
Department of State.
[FR Doc. 2020–21975 Filed 10–20–20; 8:45 am]
BILLING CODE 4710–06–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Parts 1, 2, 27
[WT Docket No. 19–348; FCC 20–138; FRS
17121]
Facilitating Shared Use in the 3100–
3550 MHz Band
Federal Communications
Commission.
ACTION: Proposed rule.
AGENCY:
In this document, the
Commission proposes rules to govern
commercial wireless operations in the
3.45–3.55 GHz band. It proposes to add
a new primary allocation for fixed and
mobile (except aeronautical mobile)
services and to adopt technical,
licensing, and competitive bidding rules
governing licenses in this band. The
Commission proposes and seeks
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SUMMARY:
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comment on coexistence and
coordination between new commercial
wireless licensees and incumbent
federal radiolocation and
radionavigation operations, which will
continue to operate on a limited basis,
but which will remain co-primary with
commercial operations. The
Commission also proposes and seeks
comment on relocation and sunset
procedures for incumbent non-federal,
secondary operations, which are being
cleared from the band.
DATES: Interested parties may file
comments on or before November 20,
2020; and reply comments on or before
December 7, 2020.
ADDRESSES: You may submit comments,
identified by WT Docket No. 19–348, by
any of the following methods:
• Electronic Filers: Comments may be
filed electronically using the internet by
accessing the ECFS: https://apps.fcc.gov/
ecfs/ in docket number WT Docket No.
19–348. See Electronic Filing of
Documents in Rulemaking Proceedings,
63 FR 24121 (1998).
• Paper Filers: Parties who choose to
file by paper must file an original and
one copy of each filing.
• Filings can be sent by commercial
overnight courier, or by first-class or
overnight U.S. Postal Service mail. All
filings must be addressed to the
Commission’s Secretary, Office of the
Secretary, Federal Communications
Commission.
• Commercial overnight mail (other
than U.S. Postal Service Express Mail
and Priority Mail) must be sent to 9050
Junction Drive, Annapolis Junction, MD
20701. U.S. Postal Service first-class,
Express, and Priority mail must be
addressed to 445 12th Street SW,
Washington, DC 20554
• Effective March 19, 2020, and until
further notice, the Commission no
longer accepts any hand or messenger
delivered filings. This is a temporary
measure taken to help protect the health
and safety of individuals, and to
mitigate the transmission of COVID–19.
See FCC Announces Closure of FCC
Headquarters Open Window and
Change in Hand-Delivery Policy, Public
Notice, DA 20–304 (March 19, 2020).
https://www.fcc.gov/document/fcccloses-headquarters-open-window-andchanges-hand-delivery-policy.
During the time the Commission’s
building is closed to the general public
and until further notice, if more than
one docket or rulemaking number
appears in the caption of a proceeding,
paper filers need not submit two
additional copies for each additional
docket or rulemaking number; an
original and one copy are sufficient.
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FOR FURTHER INFORMATION CONTACT:
Joyce Jones, Wireless
Telecommunications Bureau, Mobility
Division, (202) 418–1327 or
joyce.jones@fcc.gov, or Ira Keltz, Office
of Engineering and Technology, (202)
418–0616 or ira.keltz@fcc.gov. For
information regarding the PRA
information collection requirements,
contact Cathy Williams, Office of
Managing Director, at 202–418–2918 or
Cathy.Williams@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a
summary of the Further Notice of
Proposed Rulemaking (FNPRM) in WT
Docket No. 19–348, FCC 20–138,
adopted September 30, 2020, and
released October 2, 2020. The full text
of the FNPRM is available for public
inspection at the following internet
address: https://docs.fcc.gov/public/
attachments/FCC-20-138A1.pdf.
Alternative formats are available for
people with disabilities (Braille, large
print, electronic files, audio format), by
sending an email to FCC504@fcc.gov or
calling the Consumer and Governmental
Affairs Bureau at 202–418–0530 (voice)
or 202–418–0432 (TTY).
Pursuant to §§ 1.415 and 1.419 of the
Commission’s rules, 47 CFR 1.415,
1.419, interested parties may file
comments on or before the dates
indicated on the first page of this
document.
Ex Parte Rules
This proceeding shall continue to be
treated as a ‘‘permit-but-disclose’’
proceeding in accordance with the
Commission’s ex parte rules (47 CFR
1.1200). Persons making ex parte
presentations must file a copy of any
written presentation or a memorandum
summarizing any oral presentation
within two business days after the
presentation (unless a different deadline
applicable to the Sunshine period
applies). Persons making oral ex parte
presentations are reminded that
memoranda summarizing the
presentation must (1) list all persons
attending or otherwise participating in
the meeting at which the ex parte
presentation was made, and (2)
summarize all data presented and
arguments made during the
presentation. If the presentation
consisted in whole or in part of the
presentation of data or arguments
already reflected in the presenter’s
written comments, memoranda or other
filings in the proceeding, the presenter
may provide citations to such data or
arguments in his or her prior comments,
memoranda, or other filings (specifying
the relevant page and/or paragraph
numbers where such data or arguments
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]]>Agencies
[Federal Register Volume 85, Number 204 (Wednesday, October 21, 2020)]
[Proposed Rules]
[Pages 66878-66888]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21975]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 85, No. 204 / Wednesday, October 21, 2020 /
Proposed Rules
[[Page 66878]]
DEPARTMENT OF STATE
22 CFR Part 41
[Public Notice 11221]
RIN 1400-AE95
Visas: Temporary Visitors for Business or Pleasure
AGENCY: Department of State.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of State (``Department'') proposes to amend its
regulation governing nonimmigrant visas for temporary visitors for
business, the B-1 nonimmigrant visa classification, by removing two
sentences defining the term ``business'' that are outdated due to
changes in the INA since 1952, from when the two sentences originate.
With removal of these sentences, the Department would no longer
authorize issuance of B-1 visas for certain aliens classifiable as H-1B
or H-3 nonimmigrants, commonly referred to as the ``B-1 in lieu of H''
policy, unless the alien independently qualifies for a B-1 visa for a
reason other than the B-1 in lieu of H policy.
DATES: Written comments must be received on or before December 21,
2020.
ADDRESSES: You may submit comments, identified by RIN 1400-AE95, by
either of the following methods:
Internet (preferred): At www.regulations.gov, you can
search for the document using [Docket Number DOS-2020-0041] or using
the proposed rule RIN 1400-AE95.
Email: Megan Herndon, Senior Regulatory Coordinator,
Office of Visa Services, Bureau of Consular Affairs, U.S. Department of
State, [email protected].
FOR FURTHER INFORMATION CONTACT: Megan Herndon, Senior Regulatory
Coordinator, Office of Visa Services, Bureau of Consular Affairs,
Department of State, 600 19th St. NW, Washington, DC 20006, (202) 485-
7586.
Public Participation
All interested parties are invited to participate in this
rulemaking by submitting written views and comments on all aspects of
this proposed rule. Comments must be submitted in English or an English
translation must be provided. Comments that will provide the most
assistance to the Department of State in implementing this change will
reference a specific portion of the proposed rule, explain the reason
for any recommended change, and include information that supports the
recommended change.
Instructions: If you submit a comment, you must include the agency
name and RIN 1400-AE95 for this rulemaking in the title or body of the
comment. Regardless of the method used for submitting comments or
material, all submissions will be posted, without change, to the
Federal eRulemaking Portal at https://www.regulations.gov, and will
include any personal information you provide. Therefore, because all
submissions will be public, you may wish to consider limiting the
amount of personal information that you provide in any voluntary public
comment submission. The Department of State may withhold from public
viewing information provided in comments that it determines may
infringe privacy rights of an individual or is offensive. For
additional information, please read the Privacy Act notice available in
the footer at https://www.regulations.gov.
SUPPLEMENTARY INFORMATION:
I. What changes to 22 CFR 41.31 does the Department propose?
The Department proposes to eliminate two sentences from its
regulation governing nonimmigrant visitors for business, 22 CFR
41.31(b)(1). The current regulation, in the paragraph defining
``business,'' includes the statement, ``An alien seeking to enter as a
nonimmigrant for employment or labor pursuant to a contract or other
prearrangement is required to qualify under the provisions of 22 CFR
41.53,'' which is the regulation governing H nonimmigrant temporary
workers or trainees. The Department proposes to remove this language,
as explained below, because, as the regulation states explicitly,
``business,'' as used in section 101(a)(15)(B) of the Immigration and
Nationality Act (``INA''), 8 U.S.C. 1101(a)(15)(B) ``does not include
local employment or labor for hire,'' so the referenced statement is
confusing and potentially misleading. For the same reasons, the
Department also proposes to eliminate from the current regulation the
statement, ``An alien of distinguished merit and ability seeking to
enter the United States temporarily with the idea of performing
temporary services of an exceptional nature requiring such merit and
ability, but having no contract or other pre-arranged employment, may
be classified as a nonimmigrant temporary visitor for business.''
II. Why is the Department proposing this rule?
A. Statutory Framework
The Department's proposal conforms the regulation with changes in
the Immigration Act of 1990 (``IMMACT 90''),\1\ the Miscellaneous and
Technical Immigration and Naturalization Amendments of 1991
(``MATINA''),\2\ and the American Competitiveness and Workforce
Improvement Act of 1998 (``ACWIA'').\3\ The two sentences the
Department proposes to eliminate from 22 CFR 41.31 date back to 1952,
prior to enactment of these laws. See 22 CFR 41.40 (1952) (added by 17
FR 11574, Dec. 19, 1952). They no longer reflect the statutory
framework governing nonimmigrants.
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\1\ Public Law 101-649, 104 Stat. 4978 (1990).
\2\ Public Law 102-232, 105 Stat. 1733 (1991).
\3\ Omnibus Consolidated and Emergency Supplemental
Appropriations Act, 1999, Public Law 105-277, div. C. tit. IV, 112
Stat. 2681-642 (1998).
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The primary statute governing the requirements for B visa
classification is the Immigration and Nationality Act (``INA'') of
1952, as amended.\4\ The Department's proposal takes into account the
amendments to the INA effected by IMMACT 90, MATINA, and the ACWIA.
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\4\ Reference to the ``1952 INA'' or ``1952 Act'' refers to the
original Immigration and Nationality Act of 1952, Public Law 82-414,
66 Stat. 163 (June 27, 1952).
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The statutory language authorizing the issuance of visas to
temporary visitors for business (B-1 nonimmigrants) or pleasure (B-2
nonimmigrants) has remained unchanged since the 1952 Act. The B visa
classification applies to temporary visitors for business or for
pleasure and excludes individuals coming for the
[[Page 66879]]
purpose of study or of performing skilled or unskilled labor or as a
representative of foreign press, radio, film, or other foreign
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information media coming to engage in such vocation.
See INA section 101(a)(15)(B), 8 U.S.C. 1101(a)(15)(B).
Under the 1952 Act, the H nonimmigrant classification pertained to
individuals of distinguished merit and ability and who is coming
temporarily to the United States to perform temporary services of an
exceptional nature requiring such merit and ability; coming temporarily
to the United States to perform other temporary services or labor, if
unemployed persons capable of performing such service or labor cannot
be found in the United States; or (iii) who is coming temporarily to
the United States as an industrial trainee.
See INA section 101(a)(15)(H), 8 U.S.C. 1101(a)(15)(H) (1952).
IMMACT 90, as amended by the MATINA, created new nonimmigrant
classifications, including two nonimmigrant classifications for certain
aliens with extraordinary ability in the sciences, arts, business, or
athletics and certain artists and entertainers, the O and P
classifications.\5\ Many such aliens were previously classified as H-1
nonimmigrants, corresponding to INA section 101(a)(15)(H)(i), 8 U.S.C.
1101(a)(15)(H)(i) (1952). Since INA section 101(a)(15)(H), 8 U.S.C.
1101(a)(15)(H) was not originally designed to address these classes of
activities, Congress determined that they should be separated from that
classification and treated independently.\6\ Most professional athletes
and entertainers coming to the United States to work in their
professions fall within the scope of these O and P classes under
current law. All aliens applying for an O or P nonimmigrant visa as a
principal alien require a petition approved by DHS prior to applying
for a visa.
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\5\ Nonimmigrant visas in the O classification are for certain
aliens with extraordinary ability in sciences, arts, education,
business or athletics, or a demonstrated record of achievement in
the motion picture or television industry, as well as certain
support staff and dependents. See IMMACT 90 section 207(a), INA
section 101(a)(15)(O), 8 U.S.C. 1101(a)(15)(O) and 22 CFR 41.55. See
also 8 CFR 214.2(o). Nonimmigrant visas in the P classification are
for certain types of artists and entertainers, as well as certain
support staff and dependents. See INA section 101(a)(15)(P), 8
U.S.C. 1101(a)(15)(P) and 22 CFR 41.56. See also 8 CFR 214.2(p).
\6\ See 136 Cong. Rec. H13203-01 (1990).
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In addition to creating the O and P nonimmigrant classifications,
IMMACT 90 and the MATINA amended the INA with regard to the H-1
classification for certain temporary workers by, in relevant part: (1)
Restricting H-1B classification to nonimmigrants coming temporarily to
perform services in a specialty occupation (as defined in INA section
214(i)(1), 8 U.S.C. 1184(i)(1)), or as a fashion model of distinguished
merit and ability; \7\ (2) adding the requirement of a labor condition
application filed with respect to the nonimmigrant by the intending
employer under INA section 212(n)(1), 8 U.S.C. 1182(n)(1), with the
Secretary of Labor; \8\ and (3) limiting the number of aliens who may
be issued H-1B visas or otherwise provided H-1B nonimmigrant status
during any fiscal year.\9\
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\7\ IMMACT 90, Sec. 205(c)(1).
\8\ IMMACT 90, Sec. 205(c)(1), (3). Prior to IMMACT 90, there
was no prevailing wage requirement or other U.S. labor force
protections concerning H-1B workers. Note that the H-1B category
resulted from the split of the H-1 category into the H-1A (now
defunct) and H-1B categories through amendments to the INA by the
Immigration Nursing Relief Act of 1989, Public Law 101-238, 103
Stat. 2099 (1989).
\9\ IMMACT 90, Sec. 205(a).
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The ACWIA, enacted in 1998, further amended the INA with respect to
H-1 classification by, in relevant part: (1) Temporarily increasing
numerical limits of H-1 visas; \10\ (2) imposing new restrictions and
requirements on H-1-dependent employers; \11\ (3) instituting a new
regime of penalties for petitioners whose attestations include
misrepresentations; \12\ (4) establishing a process to review
complaints regarding failures to offer job opportunities to U.S.
workers; \13\ and (5) imposing a $500 fee for certain H-1B
petitioners.\14\
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\10\ ACWIA, Sec. 411.
\11\ ACWIA, Sec. 412.
\12\ ACWIA, Sec. 413a.
\13\ ACWIA, Sec. 413b.
\14\ ACWIA, Sec. 414.
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Congress imposed an additional $2,000 fee in 2010 for certain H-1B
petitioners through Public Law 111-230, section 402(b), 124 Stat. 2487
(2010). This fee authorization expired on September 30, 2015, and
Congress subsequently reauthorized and increased it to $4,000 with the
Consolidated Appropriations Act, 2016, Public Law 114-113, section 411,
129 Stat. 3006. This fee remains in effect until Sept. 30, 2025.
B. Policy
The proposed rule would increase clarity and transparency by
removing confusing and outdated language about the scope of activity in
the United States that is permissible on a B-1 visa. An example of the
confusion--here to a qui tam relator--caused by this outdated language
arose recently in United States ex rel. Krawitt v. Infosys Technologies
Limited, Incorporated, 372 F.Supp. 3d 1078, 1086 (N.D. Cal 2019), in
which the District Court found a fraud complaint misinterpreted the
first sentence the Department proposes to remove related to labor
pursuant to a contract or other prearrangement.\15\ The court's
interpretation properly highlighted that this sentence is in fact
meaningless, although it is unclear whether the Court understood why
this was the case. Reporting from posts abroad indicates confusion
among aliens, attorneys, consular officers, and DHS officials at Ports
of Entry about the application of these outdated sentences,
specifically as they apply to the B-1 in lieu of H policy, described
below in section (II)(D)(ii). Thus, the Department proposes removing
the confusing and outdated sentences from the regulation.
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\15\ Krawitt, the qui tam relator, argued that one of the
sentences in 22 CFR 41.31 the Department proposes to remove (``An
alien seeking to enter as a nonimmigrant for employment or labor
pursuant to a contract or other prearrangement is required to
qualify under the provisions of Sec. 41.53'') prohibited two
Infosys employees from providing training to Apple employees in the
United States in B-1 status pursuant to a contract between the two
companies. The court responded that ``Numerous authoritative sources
contradict Krawitt's reading of the regulation,'' but did not offer
an alternative reading of the confusing sentence, apparently giving
the sentence no meaning at all.
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Removing these two sentences, and thus removing any question about
whether the referenced employment or labor might be permissible B-1
activity, not only conforms the regulation to the applicable statutory
framework, but also furthers the goals of Executive Order (``E.O.'')
13788, Buy American and Hire American. See 82 FR 18837 (April 21,
2017). That E.O. articulates the executive branch policy to
``rigorously enforce and administer'' the laws governing entry of
nonimmigrant workers into the United States ``[i]n order to create
higher wages and employment rates for workers in the United States, and
to protect their economic interests.'' Id. sec. 2(b). It directs
federal agencies, including the Department, to protect U.S. workers by
proposing new rules and issuing new guidance to prevent fraud and abuse
in nonimmigrant visa programs. Id. sec. 5. The Department believes that
eliminating any perceived gray area of acceptable local employment or
labor for skilled foreign workers for the purpose of B-1 nonimmigrant
visa issuance will better protect U.S. workers' economic interests and
strengthen the integrity of the B-1 nonimmigrant visa classification
With greater clarity regarding the Department's policy and
interpretation of the law concerning the availability of
[[Page 66880]]
a B-1 nonimmigrant visa for an alien seeking to engage in local
employment or labor, employers will be on notice that they must pay
prevailing wages for such labor performed in the United States, either
by hiring a U.S. worker or by following the procedures established by
Congress for the importation of a skilled worker in an appropriate visa
category. The Department believes this will lead to an increase in
wages for U.S. workers, because U.S. entities that previously may have
paid less than the prevailing wage for services in a specialty
occupation performed by foreign nationals who traveled to the United
States on a B-1 nonimmigrant visa issued on the basis of the outdated
regulatory language or under the B-1 in lieu of H policy (discussed in
(II)(B)(2), below) will be compelled to align their business practices
with the current statutory scheme and the policy expressed in this
proposal.
C. Proposed Elimination of Statement That an Alien Seeking To Enter for
Employment or Labor Pursuant to a Contract or Other Prearrangement Is
Required To Qualify Under the Provisions of 22 CFR 41.53
Performance of skilled or unskilled labor is statutorily
impermissible in the B nonimmigrant visa classification. INA section
101(a)(15)(B), 8 U.S.C 1101(a)(15)(B). The term ``labor'' is not
defined in the INA or implementing regulations,\16\ for the purpose of
the B nonimmigrant classification. The statement in the Department's
regulation that an alien seeking to enter for employment or labor
pursuant to a contract or other prearrangement is required to qualify
under the provisions of 22 CFR 41.53 (relating to H visas), fails to
account for the other visa categories that permit the performance of
labor in the United States (including, but not limited to the D, E, I,
L, O, P, Q, and R classifications). Additionally, the requirement is
under-inclusive, because INA section 101(a)(15)(B), 8 U.S.C.
1101(a)(15)(B), prohibits skilled or unskilled labor in the B
nonimmigrant visa classification categorically, whether or not pursuant
to a contract or other prearrangement. Because skilled and unskilled
labor on a B visa are already generally prohibited by statute, the
Department believes the referenced statement is confusing and
misleading and therefore proposes to remove the sentence from the
regulation.
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\16\ The INA, including INA section 212(a)(5)(A)(i), 8 U.S.C.
1182(a)(15)(A)(i) (labor certification requirement for certain
immigrants), and implementing regulations, such DOL regulations as
20 CFR 655.5 (defining agricultural labor) use the term labor
without defining it.
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D. Proposed Elimination of Statement Regarding Alien of Distinguished
Merit and Ability
1. Proposal as it Relates to Aliens of Extraordinary Ability in the
Sciences, Arts, Education, Business, or Athletics; and Athletes,
Entertainers, and Artists Seeking Nonimmigrant Visas Relative to Their
Professions
The Department proposes to eliminate the provision in 22 CFR 41.31
that currently provides that ``[a]n alien of distinguished merit and
ability seeking to enter the United States temporarily with the idea of
performing temporary services of an exceptional nature requiring such
merit and ability, but having no contract or other prearranged
employment, may be classified as a nonimmigrant temporary visitor for
business.'' This language has remained unchanged since 1952. See 22 CFR
41.40(b) (1952) added by 17 FR 11475 (Dec. 19, 1952)). Notwithstanding
this regulatory language, the Department has long interpreted
``business'' activities permissible in the B-1 classification to
exclude the activities of members of the entertainment profession
seeking to perform services within the scope of their profession. For
example, an acclaimed singer and accompanying musicians seeking to
enter the United States to perform a concert in a stadium in the United
States would be required to obtain O or P visas, after filing a
petition with U.S. Citizenship and Immigration Services (USCIS), and
would not be eligible for a B-1 visa for this purpose, as the existing
regulation suggests.
The Department's interpretation of ``business,'' with respect to
entertainers, dates back to the 1960s or 1970s, well before enactment
of IMMACT 90, but the oldest published guidance currently available to
the Department is from August 30, 1987, stating ``[o]rdinarily, a
member of an entertainment occupation who seeks to enter the United
States temporarily to perform services, whether or not the services
will involve public appearance and regardless of the amount or source
of compensation, will be accorded the appropriate H-1 classification.''
\17\ Because this guidance was promulgated prior to the enactment of
IMMACT 90, H-1 was the appropriate classification for aliens performing
such services. Under IMMACT 90's targeted standards and procedures for
professional entertainers, such performers would fall in the O and P
categories. Notably, the 1987 guidance, which steers members of the
entertainment profession away from B visas, is consistent with current
FAM guidance; \18\ the proposal serves to bring the regulation in line
with the Department's long-standing policy. Therefore, with respect to
entertainers of distinguished merit and ability who seek to perform in
the United States, the Department does not expect that removing this
language from the B nonimmigrant visa regulation will have any impact
on visa issuance, because the statement does not align with current
practice.\19\
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\17\ 9 FAM 41.31, Notes, N7.1 (TL:VISA-2, August 30, 1987). In
the intervening decades, this guidance has become more nuanced to
reflect certain situations where services in an entertainment
profession are consistent with B-1 visa classification, as described
in the following paragraphs and associated footnotes.
\18\ 9 FAM 402.2-5(G) states that, with limited exception not
affected by this proposal, ``B visa status is not appropriate for a
member of the entertainment profession (professional entertainer)
who seeks to enter the United States temporarily to perform
services. Instead, performers should be accorded another appropriate
visa classification, which in most cases will be P, regardless of
the amount or source of compensation, whether the services will
involve public appearance(s), or whether the performance is for
charity or a U.S. based ethnic society.'' This proposal would not
affect existing Department guidance on the situations in which
professional entertainers and artists may be classified B-1, such as
participants in cultural programs performing before a nonpaying
audience and being paid by the sending government. See 9 FAM 402.2-
5(G)(1)-(5).
\19\ This proposal would not affect Department guidance to
consular officers with regard to amateur athletes and entertainers.
Under 9 FAM 402.2-4(A)(7), a person who is an amateur in an
entertainment or athletic activity is, by definition, not a member
of any of the profession associated with that activity. An amateur
is someone who normally performs without remuneration (other than an
allotment for expenses). A performer who is normally compensated for
performing cannot qualify for a B-2 visa based the provisions of 9
FAM 402.2-4(A)(7) even if the performer does not make a living at
performing, or agrees to perform in the United States without
compensation. Thus, an amateur (or group of amateurs) who will not
be paid for performances and will perform in a social and/or
charitable context or as a competitor in a talent show, contest,
athletic event, or other similar activity is eligible for B-2
classification, even if the incidental expenses associated with the
visit are reimbursed.
This proposal would not change this understanding.
In proposing to remove this provision from the regulation, the
Department recognizes that aliens of ``distinguished merit and
ability'' in areas other than athletics, entertainment, and art may
also be impacted. To the extent the proposal to eliminate this
section overlaps with the proposal to eliminate the B-1 in lieu of H
policy, see the discussion immediately below.
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While there is limited case law directly interpreting ``business''
as related to athletes, entertainers, and artists seeking to perform
services within the scope of their professions,\20\
[[Page 66881]]
the Department's interpretation is consistent with case law
interpreting ``business'' more generally. The Board of Immigration
Appeals has repeatedly held that ``business,'' as used in INA section
101(a)(15)(B), 8 U.S.C. 1101(a)(15)(B), does not include ordinary labor
for hire or local employment of a continuing nature, the extension of
professional practice to the United States, or the regular performance
of services in the United States not performed as an incident to any
international commercial activity. See, e.g., Matter of Neill, 15 I. &
N. Dec. 331, 334 (BIA 1975) (extending professional engineering
practice to the United States was not permissible for the B
nonimmigrant classification); Matter of G--, 6 I. & N. Dec. 255, 258
(BIA 1954) (holding that employment of a continuing nature as a
receiving clerk and truck loader in the United States was not
permissible B-1 activity even when the alien maintained a residence in
Canada which he had no intent of abandoning and was paid entirely by
the Canadian company); compare Matter of Duckett, 19 I. & N. Dec. 493,
498 (BIA 1987) (holding professional services regularly performed in
the United States permissible B-1 activity because the function was a
necessary incident to international trade).
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\20\ The Board of Immigration Appeals held that a professional
dancer was not eligible to enter the United States to fulfill a 6
month dancing contract as a temporary visitor for business in In the
Matter of M--, 2 I. & N. Dec. 240 (BIA 1945), but the reasoning
leading to that conclusion is opaque.
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The Department's existing guidance to consular officers provides
some scenarios in which professional athletes, artists, and
entertainers may qualify for B-1 visas for the purpose of performing
services within the scope of their professions. These examples extend
the reasoning of administrative decisions interpreting the scope of
permissible B-1 activity to situations consular officers may encounter
and do not rely on the regulatory language the Department proposes to
remove; thus, these purposes of travel would not be affected by this
proposal. For example, 9 FAM 402.2-5(C)(4) paragraph b explains that
athletes or team members who seek to enter the United States as members
of a foreign-based team in order to compete with another sports team
are eligible for B-1 visas, provided that the foreign athlete and the
foreign sports team have their principal place of business or activity
in a foreign country and the income of the foreign-based team and the
salary of its players are principally accrued in a foreign country. The
referenced FAM guidance is consistent with Matter of Hira, 11 I&N 824
(BIA 1965; A.G. 1966), which identifies relevant factors for B-1
classification as, among others, the principal foreign place of
business and the principal location of accrual of profits abroad.\21\ A
separate FAM provision, which is also not affected by this proposal,
specifies that a professional entertainer may be classified B-1 if the
entertainer (1) is coming to the United States to participate only in a
cultural program sponsored by the sending country; (2) will be
performing before a nonpaying audience; and (3) all expenses, including
per diem, will be paid by the member's government. 9 FAM 402.2(G)(1).
These criteria also align with the Attorney General's interpretation in
Matter of Hira.
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\21\ 9 FAM 402.2-5(A) paragraph b explains the facts of Matter
of Hira and its relevance to consular officers' determination of
appropriate B-1 activity. It explains that in some situations, it
can be difficult to distinguish between appropriate B-1 business
activities, and activities that constitute skilled or unskilled
labor in the United States that are not appropriate on B status.
Hira involved a tailor measuring customers in the United States for
suits to be manufactured and shipped from outside the United States.
The decision stated that this was an appropriate B-1 activity,
because the principal place of business and the actual place of
accrual of profits, if any, was in the foreign country.
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The Department's proposal seeks to bring the regulations into
conformity with Department practice with respect to athletes,
entertainers, and artists by removing the one sentence of regulatory
language that has been superseded by Congress through the passage of
IMMACT 90. Therefore, the Department does not expect that removing this
language from the regulation will impact visa issuance with respect to
athletes, entertainers, and artists of distinguished merit and ability
who seek to compete or perform in the United States.
2. Proposal as It Relates to B-1 in Lieu of H Nonimmigrant Visas
Following elimination of the two outdated and misleading sentences
from the regulation, there will be less confusion about whether the
Department might permit B visa issuance for aliens seeking to engage in
local employment, including labor appropriately classified as H-1B or
H-3 activities. Employers, foreign workers, immigration attorneys, or
others may have erroneously believed that such activity has been
permissible for B-1 nonimmigrant visa issuance, in some cases, under a
visa policy referred to as the B-1 in lieu of H policy. Agency guidance
to consular officers on this policy, currently in 9 FAM 402.2-5(F),\22\
will be withdrawn if the rule is finalized. Like the confusing and
outdated regulatory language described above, the Department also seeks
to terminate the B-1 in lieu of H policy, for reasons of law and
policy. Eliminating the regulatory language described above and
eliminating the FAM guidance supporting the B-1 in lieu of H policy
will make clear that foreign workers seeking to engage in local
employment or labor for hire must follow the procedural requirements
enacted by Congress to protect U.S. workers. Temporary visits for
business activities that are consistent with Matter of Hira will still
be permissible purposes for B-1 visa issuance under this proposal.
Aliens seeking to engage in such business activities will qualify for
B-1 visa classification if their purpose of travel is consistent with
the B-1 visa classification, irrespective of whether the applicant
might qualify for an H visa. The Department believes this clarification
will strengthen the integrity of the B-1 program and better align its
regulation and guidance for consular officers with the statutory
framework, administrative case law, and visa policy.
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\22\ See 9 FAM 402.2, available at https://fam.state.gov/FAM/09FAM/09FAM040202.html (last accessed October 14, 2020).
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Under INA section 101(a)(15)(B), 8 U.S.C. 1101(a)(15)(B), aliens
coming to the United States to perform skilled or unskilled labor are
not eligible for B-1 nonimmigrant classification. The Senate Report
accompanying the Immigration and Nationality Act of 1952 (S. Rept. No.
1515), p. 525, cited Karnuth v. United States, 279 U.S. 231 (1929), to
indicate that ``visitor for business'' does not include a visitor
coming to perform labor for hire, especially given the congressional
intent of the 1924 Act ``to protect American labor against the influx
of foreign labor.'' Id. at 243-44. In addition to carrying over that
principle from the Immigration Act of 1924, Congress in the 1952 Act
added a new nonimmigrant visa classification, the H classification,
designed for temporary foreign workers to meet the needs of employers
in the United States. See INA section 101(a)(15)(H), 8 U.S.C.
1101(a)(15)(H). As noted above, in 1952, the H nonimmigrant
classification was divided between ``aliens of distinguished merit and
ability'' coming temporarily to the United States to ``perform
temporary services of an exceptional nature requiring such merit and
ability'' (H-1); other skilled or unskilled aliens to perform other
temporary services or labor, if unemployed persons capable of
performing such service or labor cannot be found in the United States
(H-2); and trainees (H-3). All three H nonimmigrant sub-categories
required a petition approved by the former Immigration and
Naturalization Service (INS) to establish eligibility for the
[[Page 66882]]
classification, and a labor market test was required for the H-2
nonimmigrant classification. The B-1 in lieu of H policy arose in the
context of this framework in the 1960s.
The B-1 in lieu of H policy was adopted jointly by the INS and the
Department's Visa Office in the 1960s. See The Proposed Restriction of
the ``B-1 in Lieu of H-1'' Concept, Bernsen, 70 No. 35 Interpreter
Releases 1189, Sept. 13, 1993. The purpose was to reduce unnecessary
paperwork and facilitate international travel by eliminating the
requirement for filing H-1 and H-3 petitions for cases within the
purview of the concept, so that the alien could apply for a visa
without any intervening INS action, in a one-step procedure.\23\ Id.
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\23\ In a version of the FAM available from March 31, 1980, 9
FAM 41.25, note 4.2(c) provided that ``[a]n alien already employed
abroad coming to undertake training who would be classifiable H-3
but who will continue to receive a salary from the foreign employer
and will receive no salary or other remuneration from a U.S. source
other than an expense allowance or other reimbursement for expenses
incidental to his temporary stay'' is classifiable B-1. The H-3
petition process had been criticized for being too slow. See
Nonimmigrant Business Visas and Adjustment of Status; Hearing before
the Subcommittee on Immigration and Refugee Policy, Senate Judiciary
Committee; Serial No. J-97-86, December 11, 1981; Preference System;
Hearing before the Subcommittee on Immigration and Refugee Policy,
Senate Judiciary Committee; Serial No. J-97-83, November 23, 1981.
By March 31, 1980, Department guidance referenced B in lieu of H-3.
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a. B-1 in Lieu of H-1B
In proposing elimination of B-1 in lieu of H, which is related to
the two sentences proposed for elimination, the Department finds that
visa policy has lagged behind changes to the INA since the policy was
first adopted. The Department's past failure to align its regulations
with the statutory framework has created confusion about the limits of
permissible activity on a B visa. Section 205 of IMMACT 90 amended the
H-1B nonimmigrant classification in a number of respects. Among other
amendments, it (1) imposed a numerical limitation on this
classification for the first time; (2) modified the standard generally
applicable to aliens seeking admission under the classification from
``distinguished merit and ability'' to ``specialty occupation'' as
defined in INA section 214(i)(1); and (3) instituted a labor condition
application requirement. See INA section 214(g)(1)(A) and section
212(n), 8 U.S.C. 1184(g)(1)(A) and 1182(n). The amendments made by
section 205 expressed Congress' intent to limit availability of the H-
1B visa classification in certain respects. MATINA further amended the
H-1B category to include certain fashion models, placed conditions on
eligibility for doctors, and narrowed the attestation requirements for
labor condition applications.
While IMMACT 90 did not alter the language of INA section
101(a)(15)(B), 8 U.S.C. 1101(a)(15)(B), the changes to the H-1B
classification and the legislative history indicate that Congress
intended the B-1 classification to be applied narrowly after enactment.
The Senate report describes the reasoning as follows: ``For example,
the committee has taken note of, and relied upon, the reasoning of
Bricklayers and Allied Craftsmen v. Meese, 616 F. Supp. 1387 (N.D. Cal.
1985), with regard to the proper scope of the B temporary visa category
. . . the committee's action in expanding immigration rests on this
understanding of the narrow scope of the B temporary visa category, and
consequently, the narrow scope of any implementing operations,
instructions, or regulations.'' \24\
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\24\ Immigration Act of 1989; S. Rept. 101-55 on S. 358, June
19, 1989 Congressional Reports: Doc. No. 15- June 19. 1989, page 20.
In the Bricklayers case, the Court struck down an INS operating
instruction allowing admission as a business visitor of an alien
coming to install, service, or repair commercial or industrial
equipment sold by a foreign vendor to a U.S. purchaser, holding that
the instruction was contrary to the plain language of the INA. The
Ninth Circuit granted a joint motion to limit the injunction only to
aliens coming to perform building or construction work of the kind
performed by members of the plaintiff union, after which the parties
agreed to dismiss the case. The validity of the U.S. government's
interpretation of INA section 101(a)(15)(B) as extending to other
types of skilled labor was never addressed.
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After the passage of IMMACT 90, the Department and the INS began to
question the appropriateness of continuing the B-1 in lieu of H policy.
See 91 STATE 312100, reproduced in 68 No. 37 Interpreter Releases 1263,
Sept. 30, 1991. The Department proposed to eliminate the B-1 in lieu of
H policy in an NPRM published in the summer of 1993. 58 FR 40024-30
(July 26, 1993). INS also published an NPRM proposing the elimination
of the B-1 in lieu of H policy in the autumn of 1993. 58 FR 58982-88
(Nov. 5, 1993). Neither agency finalized its rule, although interagency
discussions continued. See 12 STATE 101466, reproduced at 89 No. 42
Interpreter Releases 2013 (Oct. 29, 2012) (``The B-1 in lieu of H-1B
and H-3 guidance in 9 FAM 41.31 N11 is under review in an interagency
process, but remains in effect until further notice.'')
While the Department endeavored to interpret its B-1 in lieu of H
policy in a manner consistent with the statutory framework, including
by limiting the policy to apply only to those cases that most clearly
met the definition of ``business'' set forth in Matter of Hira and
subsequent Board of Immigration Appeals cases, the resulting changes to
the policy's parameters were not well publicized and the relevant
regulations were never updated. Additionally, with the development of
new technology since the introduction of the B-1 in lieu of H policy in
the 1960s, including increased standardization of electronic salary
deposits through direct deposit, the policy has become more subject to
exploitation. For example, a company can more easily ``pay salaries''
from abroad that circumvent the local wage and hour laws where actual
labor is performed when contracting local labor for hire in the United
States, which would have been impermissible during the early days of
the B-1 in lieu of H policy due to restrictions on place of salary
payment. As a result of the confusing regulatory language, changes in
immigration laws over the years, and technological advancements, the
Department believes some stakeholders may have come to believe the B-1
in lieu of H policy permits issuance of B-1 visas for broad categories
of skilled labor, notwithstanding the greater specificity in labor and
employment-related visa classifications under the INA, as amended by
IMMACT 90. In light of E.O. 13788, as well as the numerical
restrictions in the H-1B category, requirements of the labor condition
application, and revised definition of the H-1B category contained in
IMMACT 90, the Department is compelled to eliminate the B-1 in lieu of
H policy and end the confusion that has surrounded it.
Efforts to limit the application of the B-1 in lieu of H policy
have had unintended consequences, and the continuation of the policy
would not align with Administration policy. The requirements of the B-1
in lieu of H policy outlined in 9 FAM 402.2-5(F), derived from the
reasoning in Matter of Hira, focus on the physical location of the
employer's office and the source of the worker's remuneration for
services performed in the United States both being abroad. The Board of
Immigration Appeals identified these factors, among others, as
dispositive of whether the work in question was impermissible local
employment or permissible business that is a necessary incident to
international trade or commerce. The focus on these factors alone might
lead to an incorrect conclusion that skilled labor is permissible in
the B-1 classification, if these factors are met. To the contrary, the
Department does not believe that a strategically structured contract
between a U.S.
[[Page 66883]]
business and a foreign employer can provide an acceptable basis for
foreign workers to seek B-1 visas to perform skilled labor in the
United States. Such an interpretation would undermine the interests of
U.S. workers, the intent of Congress, and the goals of E.O. 13788. For
these reasons and the reasons stated above, the Department seeks to end
this longstanding policy, remove the regulatory sentences supporting
it, and eliminate guidance to consular officers reflecting the policy.
One example that may illuminate the implications of retaining the
B-1 in lieu of H policy could be a U.S. architecture firm seeking
protection from rising labor costs in the United States. The firm might
believe it could lay off its U.S. architects and contract for the same
professional architectural services to be provided by a foreign
architecture firm. If the foreign firm sought H-1B visas for its
architects, it would be required to pay the prevailing wage for
architects in the area of intended employment in the United States,
presumably the same wage the U.S. architects had been paid, and meet
the other requirements enacted by Congress to protect U.S. workers. But
under the B-1 in lieu of H policy, the foreign architects could
ostensibly seek B-1 visas and travel to the United States to fill a
temporary need for architecture services, so long as they retained a
residence in the foreign country and continued to receive a salary,
perhaps significantly lower than what is customary for U.S. architects,
dispersed abroad by the foreign firm (or under the auspices of a
foreign parent or subsidiary). Under the Department's guidance as
expressed in 9 FAM 402.2-5(F), visas could be issued for multiple
architects planning temporary work in the United States, in certain
situations; however, a foreign employer may succeed in undermining U.S.
immigration law and policy by rotating architects between the United
States and the foreign country to effectively fill the position of one
U.S. architect at a significantly lower cost. If the architects who
intended to perform skilled labor were ``of distinguished merit and
ability . . . seeking to perform [temporary architectural services] of
an exceptional nature requiring such merit and ability,'' one might
argue the current regulatory language suggests this type of labor is a
permissible basis for B-1 nonimmigrant visa issuance. As this potential
outcome is harmful to U.S. workers and contrary to administration
policy as expressed in E.O. 13788, and as expressed in longstanding FAM
guidance to consular officers, the Department seeks to eliminate
guidance that could be misunderstood to imply that such an arrangement
might be permissible.
If finalized, this proposal will eliminate any misconception that
the B-1 in lieu of H policy provides an alternative avenue for aliens
to enter the United States to perform skilled labor that allows, and
potentially even encourages, aliens and their employers to circumvent
the restrictions and requirements relating to the H nonimmigrant
classification established by Congress to protect U.S. workers.\25\ The
proposed changes and the resulting transparency would reduce the impact
of foreign labor on the U.S. workforce of aliens performing activities
in a specialty occupation without the procedural protections attendant
to the H-1B classification. Specifically, these procedural protections
include the numerical cap on the H-1B category in INA section
214(g)(1), 8 U.S.C. 1184(g)(1), which limits the number of foreign
workers permitted to compete with U.S. workers. There are no such
limits on the number of workers who may qualify for a B-1 visa under
the B-1 in lieu of H-1B policy. Similarly, the labor condition
application requirement added to INA section 212(n), 8 U.S.C. 1182(n),
by IMMACT 90 requires employers to make attestations regarding the
wages and working conditions of H-1B nonimmigrants and to provide
notification to U.S. workers to mitigate the potential adverse effects
of importing foreign labor through the H-1B program. In contrast, the
application process for a B-1 visa does not include similar procedural
requirements to protect U.S. workers. Further, while Congress required
H-1B employers to pay significant fees to fund assistance to the U.S.
workforce as well as prevention and detection of fraud related to
skilled labor, employers are not required to pay comparable fees to
employ skilled workers under the B-1 in lieu of H policy. See INA
sections 214(c)(9), (12), and 286(s), (v), 8 U.S.C. 1184(c)(9), (12),
and 1356(s), (v). To the extent the current regulatory language
suggests that U.S. employers may seek foreign workers in the B-1
classification to perform local employment or labor, absent the
procedural protections for U.S. workers Congress enacted, this practice
affords lesser protections than Congress intended for U.S. workers
filling and seeking similar position. The Department proposes
eliminating the B-1 in lieu of H policy for these reasons, for greater
consistency with U.S. law and congressional intent, and in furtherance
of the policy expressed in E.O. 13788, all of which aim to protect U.S.
workers' economic interests.
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\25\ The legal proceedings against Indian information technology
company Infosys Limited provides one public example outside the
context of the B-1 in lieu of H policy of the strong financial
incentives for aliens and their employers to misuse the B-1 visa to
circumvent the requirements of the H nonimmigrant classification. On
December 17, 2019, the California Attorney General announced an
$800,000 settlement against Infosys Limited to resolve allegations
that approximately 500 Infosys employees worked in California on
Infosys-sponsored B-1 visas rather than H-1B visas. According to the
Attorney General's statement, the misclassification resulted in
Infosys avoiding California payroll taxes and paying workers lower
wages. See https://oag.ca.gov/news/press-releases/attorney-general-becerra-announces-800000-settlement-against-infosys (Last accessed
December 26, 2019). The New York Attorney General announced a $1
million settlement with Infosys Corporation in June 2017 based on
similar claims. See https://ag.ny.gov/press-release/2017/ag-schneiderman-announces-settlement-infosys-failing-follow-us-visa-requirements (Last accessed December 26, 2019).
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To the extent any U.S. entities may claim its business model relied
on the B-1 in lieu of H policy to pay foreign skilled workers at rates
below prevailing wages, the Department would note that consular
officers are the sole arbiters of visa eligibility and no one may
justifiably assume that a visa will be issued to a particular alien or
for a particular purpose, prior to adjudication. Any such businesses
could face costs, potentially significant costs, in conforming their
hiring practices to the statutory scheme without the benefit of the B-1
in lieu of H policy. To mitigate harm that might follow immediate
implementation, B-1 visas that are valid when this proposal is enacted
will not be revoked on the basis of this policy change, and employers
will be able to continue to benefit from the services of skilled
workers appropriately issued B-1 visas under the guidance at 9 FAM
402.2-5(F) in place at the time of visa issuance, subject to the
independent reviews by DHS at ports of entry. The Department hereby
notifies U.S. businesses that following the effective date of a final
rule, they no longer will be able to reference the B in lieu of H
policy to defend obtaining services in a specialty occupation from
workers being paid at a rate below prevailing wage. The Department has
determined that policy must be eliminated to better protect U.S.
workers' economic interests and strengthen the integrity of the B-1
visa program, in addition to conforming to current statutory
requirements.
Setting aside legal considerations, the Department believes that
the proposal is justified as a matter of policy, notwithstanding any
possible reliance by U.S. entities and other costs to businesses of
aligning the hiring of skilled foreign workers to the requirements of
the INA, or alternatively of hiring U.S. workers, because of the
[[Page 66884]]
benefits that this proposed rule provides U.S. workers, which could be
substantial. In calculating these benefits, the Department assumes that
the wages paid to workers in the United States in B-1 status would
generally be the minimum legally permissible, or the minimum wage in
the work location. Similarly, due to lack of more specific data, the
Department assumes the salary paid either to H-1B workers or to U.S.
workers in specialty occupations generally would be the prevailing wage
calculated by the Department of Labor.\26\ The gap between this wage
and the local minimum wage could be significant; for example, 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.
Presumably, the same employer would need to offer wages at least as
high as the prevailing wage in order to secure the services of a
qualified U.S. worker. The gap is even larger in Austin, Texas where
the minimum wage is $7.50 per hour and the prevailing wage for a
computer network architect is at least $37.15 per hour.\27\ In enacting
IMMACT 90 and requiring employers to pay the prevailing wage for
skilled foreign workers, Congress determined that the gains of this
policy to U.S. workers, who would see greater employment opportunities
and higher wages without the downward pressure from underpaid foreign
workers, outweighed the associated costs to U.S. employers. The
Department proposes to remove the outdated regulatory language
supporting the B-1 in lieu of H policy that erodes the protections for
U.S. workers Congress sought to enact.
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\26\ For H-1B workers, the prevailing wage calculated by DOL is
the minimum legally permissible wage. INA section
212(n)(1)(A)(i)(II). The Department of Labor's website explains that
the prevailing wage rate is the average wage paid to similarly
employed workers in a specific occupation in the area of intended
employment. See https://flag.dol.gov/programs/prevailingwages, last
accessed January 22, 2020. This is the best available measure of the
salary costs to employers of hiring a U.S. worker.
\27\ https://www.minimum-wage.org/, last accessed November 4,
2019; https://flcdatacenter.com, last accessed November 4, 2019.
Note that the prevailing wage cited is for workers in a specialty
occupation with the lowest level of experience; employers are
required to pay experienced H-1B workers a higher prevailing wage.
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b. B-1 in Lieu of H-3
Likewise, and also taking into account E.O. 13788, the Department
proposes to eliminate the B-1 in lieu of H-3 policy.\28\ In addition to
limiting the H-1B program, IMMACT 90 limited the H-3 program to exclude
training programs ``intended primarily to provide productive
employment.'' The H-3 petition process for trainees requires an
immigration officer to evaluate whether a training program complies
with this limitation and with applicable regulations, which limit the
total time of a training program to two years and contains explicit
protections for U.S. workers. Among other requirements, petitioners
must explain why the training is required, demonstrate that the
training is not available in the beneficiary's country, indicate how
the training will benefit the beneficiary in pursuing a career abroad,
identify the source of any remuneration the trainee will receive, and
describe any benefit the petitioner will obtain by providing the
training. See 8 CFR 214.2(h)(7).
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\28\ The B-1 in lieu of H policy, as it relates to H-3s, has
historically applied to only H-3 trainees, therefore the discussion
of H-3 is specific to this type of H-3 nonimmigrant.
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As explained in the final rule establishing H-3 regulatory
requirements, 55 FR 2602, 2618 (Jan. 26, 1990), ``[t]oo often,
petitioners who cannot obtain H-1 or H-2B classification for workers
will submit petitions for such workers under the H-3 classification
with the intention of employing them under the guise of a training
program.'' The aforementioned final rule was written before the
enactment of IMMACT 90, which further restricted the H-3 classification
to training programs that are ``not designed primarily to provide
productive employment.'' IMMACT 90 section 205(d). While the regulatory
requirements and statutory limitations discussed above prevented some
of this abuse in the H-3 category, some employers misused the B-1 in
lieu H policy to bypass the important protections built into the H-3
classification and described above. The Department's proposal ending
the use of B-1 visas for these training programs in the future, even
for trainings of a short duration, will assist in preventing abuse of
the U.S. immigration system and protecting U.S. workers' economic
interests.
For these reasons, the Department proposes to eliminate the
referenced specific language from 22 CFR 41.31(b)(1), the outdated
regulatory language that supported the B-1 in lieu of H-3 policy, and
the related guidance at 9 FAM 402.2-5(F).
III. Regulatory Findings and Impact Statements
A. Administrative Procedure Act
The Department is providing 60 days for public comment on this
proposed rule's elimination of two sentences in the regulation and the
B in lieu of H policy.
B. Regulatory Flexibility Act/Executive Order 13272 (Small Business)
This proposed rule only regulates the category of individuals who
qualify for B nonimmigrant visas. Businesses have no petition component
for B visas and are outside the zone of interest of this rulemaking
because the RFA deals with direct economic impacts on a substantial
number of small entities. Therefore, a regulatory flexibility analysis
is not required.
C. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (``UMRA'') is intended,
among other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of the UMRA
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may result in a $100 million or more expenditure (adjusted
annually for inflation) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector.
This proposed rule does not exceed the $100 million expenditure in
any one year when adjusted for inflation ($163 million in 2018
dollars), and this rulemaking does not contain such mandates. The
requirements of Title II of the Act, therefore, do not apply, and the
Department has not prepared a statement under the Act.
D. Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review)
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). The
Department has reviewed this proposal to ensure consistency with those
requirements. The Department has not identified any available
regulatory alternative to this proposal that would meet the
Department's policy of rigorously interpreting the relevant
[[Page 66885]]
provisions of the INA, including provisions governing entry into the
United States of workers from abroad.
This proposed rule would not directly regulate U.S. entities but
may have indirect fiscal effects on those entities that use the
services of foreign workers in specialty occupations in the United
States in B-1 classification. Aliens issued visas based on the B-1 in
lieu of H policy must be paid by a foreign source and are thus
generally employed by a foreign company.\29\ However, the purpose of
the travel is often to provide services in a specialty occupation for
one or more U.S.-based clients. Generally, those U.S. entities might
incur some additional costs if they instead seek U.S. workers to
provide those services or, alternatively, seek H-1B or other
classification for those foreign workers.
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\29\ The Department's guidance on the B-1 in lieu of H policy at
9 FAM 402.2-5(F) prohibits B-1 visa issuance if the applicant will
receive any salary or other remuneration from a U.S. source other
than an expense allowance or other reimbursement for expenses
incidental to the alien's temporary stay. For purposes of this
Section, it is essential that the remuneration or source of income
for services performed in the United States continue to be provided
by the business entity located abroad.
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The Department estimates that this proposal will affect no more
than 6,000 to 8,000 aliens per year, specifically aliens intending to
provide services in a specialty occupation in the United States. Since
February 22, 2017, the FAM has required consular officers to use a
specific annotation on the face of any visa issued on the basis of the
B-1 in lieu of H-1 or B-1 in lieu of H-3 policy. See 9 FAM 402.2-5(F).
The Department searched annotations for Fiscal Years 2015 through 2019
using the currently required annotations and variations of B-1 in lieu
of H and found the following numbers of annotated visas reflecting B-1
in lieu of H-1 or H-3: FY 2015: 6,323; FY 2016: 5,739; FY 2017: 6,287;
FY 2018: 6,681; FY 2019: 7,940. Because the annotation has been
required since February 2017, data collected on or after that date is
more reliable than data for earlier periods. It is likely that data for
earlier periods understated the number of visas issued on the basis of
these policies, so we estimate annual visa issuance under the B-1 in
lieu of H policy in some years could have been as high as 8,000. For
purposes of providing baseline information about potential costs
associated with this proposal, the Department therefore uses the upper
estimate of 8,000. This is likely an overestimate because some aliens
who received a B-1 visa under the B-1 in lieu of H policy would still
qualify for B-1 visas. However, the assessment of their qualification
for the B-1 visa classification would not take into consideration
whether they would qualify for an H visa, but rather whether the B-1
visa classification is appropriate for other reasons, like adherence to
the Hira standards.
The Department estimates that up to 28 percent of the approximately
8,000 annual B-1 visa issuances under the B-1 in lieu of H policy were
to aliens who applied for a visa to perform services in a specialty
occupation for a small entity in the United States. This estimate is
based on the Department's analysis of a sample of 375 of the visa
applications that resulted in visa issuance under the B-1 in lieu of H
policy.\30\ To determine whether the alien intended to perform services
for a small U.S. entity, the Department analyzed the ``U.S. Point of
Contact'' field on submitted DS-160 applications, the most relevant
available information. The Department does not collect data on the
legal name of the entity in the United States using the services to be
provided by an alien applying for a B-1 visa.\31\ This analysis showed
that a maximum of 106 aliens, or 28.27% of the sample, listed a U.S.
Point of Contact that was a small entity, as defined by the Small
Business Administration. This includes 50 applications listing a U.S.
Point of Contact about which the Department was unable to find
sufficient information to determine whether the enterprise is small; in
order to capture the maximum possible impact on small entities, the
Department considered all 50 entities with insufficient information to
be small entities.
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\30\ From the 14,621 total visa applications approved under the
B-1 in lieu of H policy in fiscal years 2018 and 2019 combined, the
Department randomly selected 375. That sample size was selected
after the Department computed that a sample size of 374 would
provide a 95% confidence level with 5% error.
\31\ As noted above, under the Department's guidance at 9 FAM
402.2-5(F), aliens issued visas based on the B-1 in lieu of H policy
must be paid by a foreign source and are thus generally employed by
a foreign company. Thus, while the DS-160 application contains a
field for ``Present Employer or School Name,'' this field is not
useful for determining the U.S. entity that will use the alien's
services in the United States, which could be, for example, a
parent, subsidiary, client, supplier, or business partner of the
foreign employer.
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The Department assumed that the up to 8,000 aliens benefitting from
the B-1 in lieu of H policy provided services to a maximum of 8,000
distinct U.S. entities, though the exact number of distinct entities
potentially indirectly affected by this proposal is unknown due to
limited data availability, and because some aliens previously issued a
B-1 visa under the B-1 in lieu of H policy may continue to qualify for
the B-1 visa classification after termination of the policy. Based on
the analysis described above, the Department estimates that a maximum
of 2,262 (28.27% of 8,000) distinct small entities could be indirectly
affected by this proposal.
U.S. entities seeking services in a specialty occupation will no
longer be able to acquire those services from aliens in the United
States in B-1 classification pursuant to the B-1 in lieu of H policy.
Some, but not all, of those services could be performed by individuals
in B-1 status, even after termination of the B-1 in lieu of H policy.
Otherwise, U.S. entities could hire U.S. workers. Or, if relevant
labor-related conditions were met, such entities could seek qualified
foreign workers in H-1B status to perform the needed services.
In light of the uncertainty and lengthy wait time to secure H-1B
status for a foreign worker, the Department assesses that an H-1B is
not likely to be a viable option for many U.S. entities seeking an
alien to perform services in a specialty occupation that were
previously performed by an alien in B-1 status. Rather, the Department
assesses that U.S. entities indirectly affected by this proposal will
likely hire U.S. workers to perform required services in a specialty
occupation previously provided by aliens in B-1 classification. For
those H-1B petitions that are selected, approval is not guaranteed. For
example, approval would require that the U.S. entity have the employer-
employee relationship with the alien that is required for H-1B
status.\32\ Even those entities whose petitions are selected in the
lottery and approved face a timeline much longer than the timeline for
securing a B-1 visa under the B-1 in lieu of H policy. To begin, the
employer must wait until the start of the next fiscal year for the
employee to start work and, if the early April deadline for entering
the lottery has already passed, the employee's start date will be
delayed at least until the start of the following fiscal year. If a
particular petition is not selected in the lottery, the employer must
wait at least another year for the employee to start work.
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\32\ 8 CFR 214.2(h)(4)(ii). In contrast, under the Department's
guidance at under the Department's guidance at 9 FAM 402.2-5(F),
aliens issued visas based on the B-1 in lieu of H policy must be
paid by a foreign source and are thus generally employed by a
foreign company.
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Due to the labor-related requirements, uncertainty of selection
under the numerical cap on the H-1B classification, the long timeline
for H-1B adjudication, and the significant
[[Page 66886]]
paperwork and costs required to petition for the H-1B classification,
the Department anticipates that the H-1B classification will not be a
viable alternative for many U.S. entities that are currently able to
obtain the services of skilled workers under the B-1 in lieu of H
policy. Notwithstanding, the Department seeks to provide for
informational purposes baseline data about the potential costs, to
aliens and/or U.S. entities using the services of such aliens, of
seeking H-1B visas.
The Department recognizes that the costs associated with the H-1B
visa are higher than those associated with a B-1 visa. See Chart 1
below for a comparison of common costs. The Department notes the
various costs associated with the H-1B and B-1 visas may be paid by
different parties and thus are not directly comparable; for example,
the costs associated with the nonimmigrant visa application listed in
the first two rows of the chart may be paid by the alien, a foreign
employer (in the case of a B visa application), or a U.S. employer (in
the case of an H-1B visa application).
Chart 1
------------------------------------------------------------------------
Cost required for
Cost required for B (or ``No'' if
Cost type H-1B not required for
B)
------------------------------------------------------------------------
Nonimmigrant visa application $190.............. $160.
processing fee (non-refundable).
Estimated cost of time required $51.11............ $51.11.
to complete nonimmigrant visa
application \33\.
Filing an I-129, Petition for $460 *............ No.
Nonimmigrant Worker.
The American Competitive and $1500 (for certain No.
Workforce Improvement Act fee petitioners with
(authorized under Sec. 414(c), more than 25
Division C, of Pub. L. 105-277 employees).
for certain H-1B petitioners). $750 (for certain
petitioners with
25 or fewer
employees) *.
Fraud Prevention and Detection $500 *............ No.
Fee (authorized under Sec.
426(a), Division J, of Pub. L.
108-447 for employers seeking
initial H-1B nonimmigrant
status for a foreign worker).
Fee under Public Law 114-113 $4,000 *.......... No.
(temporarily authorized until
September 30, 2025 under Sec.
411(b) of Pub. L. 114-113 for H-
1B petitioners that employ 50
or more employees in the United
States if more than 50 percent
of these employees are in H-1B,
L-1A or L-1B nonimmigrant
status).
Estimated cost associated with $239.80 *......... No.
completing Form I-129 \34\.
Estimated cost of time required $220.89 *......... No.
to complete H-1B petition.
Visa reciprocity fees charged by Depending on Depending on
the Department of State nationality of nationality of
(authorized under INA Sec. applicant. applicant.
281, 8 U.S.C. 1351).
Minimum Total Costs............. $2,411.80-$9,311.8 $211.11.
0.
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An asterisk (*) indicates that the cost is generally paid by a U.S.
entity (the H-1B petitioner), which is not regulated by this proposal,
but which the Department includes for informational purposes.
The Department estimates the average time needed to complete and
submit a DS-160, Online Application for Nonimmigrant Visa, is the same
for B and H nonimmigrant visa applicants, and therefore there is no
additional time burden to visa applicants under this proposal.\35\ The
Department estimates that the average additional time U.S. petitioners
expend on the H-1 visa process, as compared to what foreign employers
spend on the B-1 visa process, is 6.384 hours. This is based on an
estimate that completing the I-129, Petition for Nonimmigrant Worker
and associated supplements related to the H classification (according
to the DHS supporting statement for the form) would take approximately
5.384 hours and one hour for the Department of Labor's Labor
Certification Application, Form 9035/9035E.\36\ Based on the weighted
average hourly rate used by DHS of $34.84, the average cost of the time
required to complete an H-1B petition is $220.89. No petition is
required for B visas. Additionally, according to the Small Business
Administration, over 90 percent of H-1B applicants utilize attorneys at
fees of $5000-$10,000. (See email on file with Visa Office.)
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\33\ See OMB Control Number 1405-0182, available at https://www.reginfo.gov/public/do/PRAMain.
\34\ In its Supporting Statement for I-129, Petition for
Nonimmigrant Worker, OMB Control No. 1615-0009, USCIS included the
following paragraph about the costs of completing Form I-129:
``USCIS estimates that costs for form preparation, legal services,
translations, required consultations, document search and
generation, and postage to mail the completed package will vary
widely. USCIS estimates that petitioners will pay an average of
$239.80 per response.''
\35\ See OMB Control Number 1405-0182, available at https://www.reginfo.gov/public/do/PRAMain.
\36\ See OMB Control Number 1615-0009 (Petition for Nonimmigrant
Worker); OMB Control Number 1205-0332 (Labor Certification
Application), available at https://www.reginfo.gov/public/do/PRAMain.
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As discussed above, Congress created certain requirements in the H-
1B program to protect the economic interests of U.S. workers by
ensuring that wages and working conditions of H-1B workers are at least
as desirable as those for comparable U.S. workers. By eliminating the
``B-1 in lieu of H'' policy and requiring employers to use the H-1B
process to obtain skilled foreign workers,\37\ this regulation will
impose upon those employers the costs of adhering to those protections,
or alternatively of hiring U.S. workers. The cost associated with
hiring a U.S. worker include paying the employee the
[[Page 66887]]
prevailing wage and providing other common benefits such as health
insurance, worker's compensation, and unemployment insurance. The
difference between the costs incurred by employers paying the minimum
wage to nonimmigrant workers in B-1 classification and the costs
incurred under this proposal vary significantly depending on the
proposed work location. Returning to the two examples detailed in
section (II)(D)(2)(a) above, and applying the wage rate benefit
multiplier of 1.46 to account for benefits provided, the increased cost
of securing the services of U.S. worker as a computer network architect
would be approximately $37.78 per hour in Silicon Valley and
approximately $42.39 per hour in Austin, Texas. If all U.S. entities
affected by this proposal seek a U.S. worker to provide services as an
entry level computer network architect in Silicon Valley, the total
additional annual cost of this proposal to U.S. employers would be
approximately $604,480,000.\38\ If all U.S. entities seek such a worker
in Austin, the total additional annual cost of this proposal to U.S.
employers would rise to $678,240,000.\39\
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\37\ The Department recognizes that some U.S. entities seeking
services from aliens in the United States in B-1 status under the B-
1 in lieu of H policy may alternatively seek visa classifications
other than B or H, depending on the circumstances of the proposed
employment in the United States. Most employment-based nonimmigrant
visa classifications have narrow eligibility requirements likely
inapplicable to most aliens performing services in B-1 visa
classification. For example, it is possible some aliens who qualify
for B visas under the B-1 in lieu of H policy may qualify for L
nonimmigrant visas. An alien applying for a L nonimmigrant visa
would need to establish, among other eligibility requirements, that
he or she has, within three years preceding the time of his or her
application for admission into the United States, been employed
abroad continuously for one year by a firm, corporation, or other
legal entity or parent, branch, affiliate, or subsidiary thereof,
and seeks to enter the United States temporarily in order to render
services to a branch of the same employer or a parent, affiliate, or
subsidiary thereof, in a capacity that is managerial, executive, or
involves specialized knowledge. See INA section 101(a)(15)(L), 8
U.S.C. 1101(a)(15)(L); 22 CFR 21.54. L nonimmigrant visas also
require petitions, and fees and costs that exceed the costs
associated with B nonimmigrant visas.
\38\ This is calculated from $37.78 per hour in Silicon Valley,
California (includes 1.46 wage multiplier) x 2,000 hours per year x
8,000 workers.
\39\ This is calculated from $42.39 per hour in Austin, Texas
(includes 1.46 wage multiplier) x 2,000 hours per year x 8,000
workers.
---------------------------------------------------------------------------
If all U.S. entities affected by this proposal do not seek another
worker but rather suffer lost productivity comparable to the wages that
would have been paid to a worker in B-1 status making the federal
minimum wage of $7.25 per hour, the total additional annual cost of
this proposal would be $116,000,000.\40\ This analysis assumes that
every worker admitted in B-1 status pursuant to a visa issued under the
B-1 in lieu of H policy was admitted for one year, the maximum period
permitted under 8 CFR 214.2(b)(1), and worked a normal U.S. work
schedule of 40 hours per week for 50 weeks during that time. Anecdotal
evidence indicates that the total hours worked by aliens admitted in
this category is likely much less, but the Department does not have
reliable data on typical admission periods or work weeks for aliens
admitted in this category and includes the maximum possible cost for
full transparency in keeping with the purpose of E.O. 12866. The
Department invites comment on this analysis and the underlying
assumptions.
---------------------------------------------------------------------------
\40\ This is calculated from $7.25 per hour (federal minimum
wage) x 2,000 hours per year x 8,000 workers.
---------------------------------------------------------------------------
The Department recognizes that employers may have to offer higher
wages, greater benefits, or improved working conditions in order to
find U.S. workers to complete the work previously done by aliens
benefitting from the B-1 in lieu of H policy. Finally, some employers
may forgo services in a specialty occupation that were previously
provided by aliens in B-1 status, and may suffer lost productivity and
profits as a result. However, the Department believes the benefits of
this proposal outweigh those costs. To the extent U.S. entities may
face increased costs, including those related to H-1B or other visa
classification requirements, hiring U.S. workers, or forgone labor, the
associated costs protect the economic interests of workers in the
United States.\41\
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\41\ This proposal advances the policy of the executive branch
to ``buy American and hire American.'' See Section 2 of E.O. 13788,
82 FR 18837 (Buy American and Hire American). Section 3 of E.O.
13788 states the policy of the executive branch to rigorously
enforce and administer the laws governing entry into the United
States of workers from abroad in order to create higher wages and
employment rates for workers in the United States, and to protect
their economic interests. Id. One potential benefit of this rule
could be the creation of higher wages and employment rates for
workers in the United States because employers that previously
engaged the services of aliens admitted under the B-1 classification
who are not subject to the wage and working conditions requirements
and other protections under the H-1B classification may seek
employees in the H-1B classification who are subject to those
requirements, or may hire U.S. workers. Id. As described above,
Congress required the current costs of seeking workers in the H-1B
classification with the enactment of IMMACT 90, MATINA, and ACWIA.
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The Department has also considered this proposed rule in light of
Executive Order 13563 and affirms that this regulation is consistent
with the guidance therein.
E. Executive Orders 12372 and 13132 (Federalism)
This regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or the distribution of power and responsibilities among the
various levels of government. This proposed rule does not alter the
standards and procedures for the Department's consideration of requests
for waiver recommendations for waiver requests made by a State
Department of Public Health, or its equivalent. Nor will the rule have
federalism implications warranting the application of Executive Orders
12372 and 13132.
F. Executive Order 12988 (Civil Justice Reform)
The Department has reviewed the regulation in light of sections
3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity,
minimize litigation, establish clear legal standards, and reduce
burden.
G. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
The Department has determined that this rulemaking will not have
tribal implications, will not impose substantial direct compliance
costs on Indian tribal governments, and will not pre-empt tribal law.
Accordingly, the requirements of Executive Order 13175 do not apply to
this rulemaking.
H. Paperwork Reduction Act
This proposed rule does not impose any new information collection
requirements under the provisions of the Paperwork Reduction Act, 44
U.S.C. chapter 35. The Department does not anticipate that there would
be an increase in paperwork if this proposal is finalized. The
Department acknowledges that, as discussed above in Section II(d)(2),
one of the reasons behind the creation of the B-1 in lieu of H policy
in the 1960's was to reduce unnecessary paperwork. However, because of
the changes to the statute since the 1960s, an alien can no longer
qualify for an H-1 visa on the basis of ``distinguished merit and
ability,'' and the Department no longer considers the paperwork
required for an alien to perform temporary labor in the United States
under the current statutory scheme unnecessary in any circumstances.
Given the numerical cap on H-1B visas, the Department does not
anticipate an increase in respondents using existing approved
information collections. It is possible that this regulation would
shift application burden to the H-1B lottery and application process,
but the Department notes that it is too speculative at this point to
pursue amendments to any information collections under the Paperwork
Reduction Act. Similarly, to the extent employers are likely to hire
U.S. workers to replace some B-1 in lieu of H workers, the Department
does not anticipate that would require any new information collections.
List of Subjects in 22 CFR Part 41
Administrative practice and procedure, Aliens, Cultural exchange
programs, Employment, Foreign officials, Foreign relations, Students,
Visas.
Text of the Proposed Rule
Accordingly, for the reasons stated in the preamble, the Department
proposes to amend 22 CFR part 41 as follows:
[[Page 66888]]
PART 41--VISAS: DOCUMENTATION OF NONIMMIGRANTS UNDER THE
IMMIGRATION AND NATIONALITY ACT, AS AMENDED
0
1. The authority citation for part 41 continues to read as follows:
Authority: 8 U.S.C. 1101; 1102; 1104; 1182; 1184; 1185 note
(section 7209 of Pub. L. 108-458, as amended by section 546 of Pub.
L. 109-295); 1323; 1361; 2651a.
0
2. Revise Sec. 41.31(b)(1) to read as follows:
Sec. 41.31 Temporary visitors for business or pleasure.
* * * * *
(b) * * *
(1) The term ``business,'' as used in INA 101(a)(15)(B), refers to
conventions, conferences, consultations and other legitimate activities
of a commercial or professional nature. It does not include local
employment or labor for hire. For the purposes of this section building
or construction work, whether on-site or in plant, shall be deemed to
constitute purely local employment or labor for hire; provided that the
supervision or training of others engaged in building or construction
work (but not the actual performance of any such building or
construction work) shall not be deemed to constitute purely local
employment or labor for hire if the alien is otherwise qualified as a
B-1 nonimmigrant.
* * * * *
Carl C. Risch,
Assistant Secretary, Consular Affairs, Department of State.
[FR Doc. 2020-21975 Filed 10-20-20; 8:45 am]
BILLING CODE 4710-06-P
