B-in-lieu-of-H1B: Another Illegal Tech Subsidy

Fact Sheet - Thursday, July 10, 2025

Federal Agency Oversight: DOS

The Basics:

• The B visa is commonly referred to as the tourist visa, but was created by Congress for temporary trips to the United States for business or pleasure. 

• Congress explicitly barred aliens with a B visa from “coming for the 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.” In other words, they are not permitted to work or attend school.

• Despite this clear prohibition, the Department of State has authorized many B visas for aliens coming to study or perform labor in the United States. 

• In the Foreign Affairs Manual (FAM), the Department of State at 9 FAM 402.2-5(F) explicitly allows aliens to apply for a B visa in lieu of an H-1B visa, and thus bypass all H-1B vetting and petition requirements, including bypassing the lottery, as well as the visa cap.

• U.S. law firms offer their services with detailed intelligence regarding which consulates are more likely to approve B in lieu of H visas. 

The Problem:

• The B-in-lieu-of-H visa allows unscrupulous employers to bypass all regulations and statutory requirements of hiring an H-1B. Similar to Optional Practical Training (OPT), there is minimal oversight of the program. 

• H-1B admissions must be petitioned for by the employer, who is vetted by the Department of State, Labor, and Homeland Security. 

• H-1B visas are also subject to numerical caps (except for certain nonprofit and academic employers), while the B Visa is uncapped and largely unvetted. 

• CBS News reported on the abuse of B-in-lieu-of-H for auto manufacturers who claimed to be hiring Americans, but were using the “tourist” visa for labor. 

• Examples of abuse of the vastly more regulated H-1B program are legion. Meanwhile, this B-visa pathway to H1B employees has minimal oversight or review, leading to a far higher likelihood of fraud and abuse. 

LEGISLATIVE RECOMMENDATION: Congress should pass a bill explicitly limiting the permissible activities allowed on a B visa. Such activities should be limited to actual tourist activities or unpaid business conferences and meetings.

ADMINISTRATIVE RECOMMENDATION: Delete 9 FAM 402.2-5(F) and explicitly bar any skilled or unskilled labor as a permissible activity in the B Visa. The DHS and DOS should publish new regulations clarifying the narrow permissible activities authorized by statute for aliens seeking a B Visa.