State Department (a Bit Late) Makes the Right Move on 'B-1 in Lieu of H-1B'

By David North on October 21, 2020

This should have happened three years ago, but the State Department has taken exactly the right steps in connection with an obscure misuse of a foreign worker program termed, obliquely, "the use of B-1 in lieu of H-1B".

It has proposed regulations that will simply drop two sentences in existing rules, which, in turn, wipes out the program completely; and, of course, it takes 40 pages of small type to explain what it will do.

The thrust of the reform — in blessed contrast to so much that we have seen in proposed regulation reforms in the foreign worker field, such as the small but helpful changes that the Department of Homeland Security has suggested in the H-1B program — is total.

If I am reading the proposal correctly, it would simply eliminate the program completely. Not since Congress refused to extend the controversial Bracero Program (for farmworkers from Mexico) back in 1963, have I seen such a drastic action with a foreign labor program. (The B-1 in lieu of H-1B program is much smaller than the Bracero Program, however.)

So what is the program that will no longer be with us? For decades, as the State Department admits, there have been two sentences in the Department's regulations that have permitted some foreign workers to be admitted on B-1 (tourist or business) visas that have allowed those workers to labor in the U.S. economy without the slightest bit of labor market oversight. Thus, the "B-1 in lieu of H-1B" terminology. This, the department declares, is in complete violation of the White House's policies of trying to protect American workers.

In some cases, such as that of the big Indian outsourcing firm, Infosys, the workers (from India) were brought here and paid at Indian pay scales, as we reported several years ago, until champion whistle-blower Jack Palmer intervened. We also wrote about the then fledgling Tesla, run by Elon Musk, doing exactly the same thing. Further, Boeing followed the same pattern, back in 2011, until some DHS airport inspectors caught wind of it.

The key statement in the proposed regulations follows:

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."

My sense is that the misuse of the provision was primarily in the H-1B field, not with the more rarified workers of "distinguished merit and ability". Two of the advantages of the program to employers, in addition to a total lack of labor market protection for the alien workers, are the fact that there are no ceilings for such workers and they can get B-1 visas much more rapidly than one can get H-1B visas.

I predict, even in the event of a Biden victory next month, that this reform — the elimination of an anomaly — will remain untouched.

The proposed change in regulations has been published in the Federal Register under the title "Temporary Visitors for Business or Pleasure", at Docket RIN 1400-AE95. It is subject to public comment for the 60 days following publication on October 21; such comments must be submitted by email or over the internet, and not by postal mail, and must include the docket number and the name of the agency (Department of State.) Readers are encouraged to submit supportive comments here.