State Department Proposes Elimination of B-1 in Lieu of H Visa Classifications

The State Department has released a proposal to eliminate an option available in certain limited circumstances for foreign workers to obtain a B-1 business visitor visa “in lieu of” an H-1B specialty occupation or H-3 trainee visa (BILOH, or “B in lieu of H”). An advance copy of the proposal is available, and will be published in the Federal Register tomorrow. The agency has provided a 60-day public comment period.

If finalized, the rule will not invalidate any currently valid visas with a BILOH annotation, and the State Department will not take action to revoke any such visas. BILOH visa holders would, however, be subject to independent review by U.S. Customs and Border Protection at U.S. ports of entry, which could include questioning on whether the foreign national will be paid the U.S. prevailing wage.

The State Department proposal also seeks to revise the regulations to clarify that the B-1 classification does not categorically include members of the entertainment or athletic professions seeking to perform services within the scope of their profession (which are more properly classified by the O-1 or P-1 categories). Certain exceptions to this general rule will remain in the current Foreign Affairs Manual (FAM), however.

After publication in the Federal Register on October 21, and close of the public comment period, the State Department will review the feedback and prepare to issue a final rule in the Federal Register. Some aspects of the rule could be revised based on public feedback. There is no set timeframe for publication of a final rule, though the process typically takes several months. According to the agency, if the rule is finalized, the BILOH provisions in the FAM will be withdrawn. However, the progress of the proposal and any future changes to the BILOH provisions of the regulations and FAM could be affected by the upcoming national elections.