The “B” visa is a nonimmigrant visa for individuals visiting the United States temporarily for business or pleasure. This article focuses on the B-1 visa for business visitors and the acceptable business activities under this visa category. There is a lot of misunderstanding surrounding what constitutes acceptable business activities while using this visa; however, if you are found to be in violation of the terms of this visa, it can make future trips into the U.S. difficult and can harm your ability to obtain other nonimmigrant or immigrant visas in the future. Therefore, it is important to have some understanding on what is permissible while traveling on this visa.
Obtaining your visa:
Generally, a citizen of a foreign country who wishes to enter the United States must first obtain a visa, either a nonimmigrant visa (for temporary stay) or an immigrant visa (for permanent residence). The visa allows a foreign citizen, to travel to a U.S. port-of entry and request permission to enter the country from a U.S. immigration officer.
The Immigration and Nationality Act (INA) regulates the entry of aliens into the U.S. The INA creates a presumption (subject to certain exceptions) that any alien entering the U.S. intends to “immigrate” or remain in the U.S. permanently. Therefore, In order to receive a nonimmigrant visa, a foreign national must overcome this presumption. In doing so, it is helpful to provide evidence of the following:
• The visit is for business purposes and your principal place of business is abroad;
• The visit is temporary, for a specific, limited period;
• You have sufficient funds to cover expenses in the United States;
• You have a residence abroad where there are compelling social and economic ties to ensure you will return home at the end of the visit.
An application for a B-1 visa is most commonly submitted through a U.S. embassy or consulate having jurisdiction over your permanent residence abroad, although you may apply to any U.S. embassy or consulate abroad.
Allowable “Business” Activities in the U.S. while using this visa:
The definition of “business” in this instance is limited, and does not generally allow for gainful employment or productive activity such as operating a business or consultancy work. Under current regulations, B-1 visa visitors are not entitled to receive a salary from a U.S. employer. A salary paid by a foreign company for services rendered in the U.S. is permissible, as is a reasonable allowance for expenses and reimbursement by a U.S. company for expenses incidental to the visit. The Department of State advises that the following are among acceptable B-1 activities:
• Engaging in market research
• Negotiating contracts
• Looking into potential real estate sites for investment
• Signing property leases
• Consulting with business associates, such as board of directors meetings
• Supervising and training U.S. workers for building or construction work, although an alien may not actually perform such work
• Installing, servicing or repairing commercial or industrial equipment purchased from abroad, or training U.S. workers in their use and repair
• Participation in scientific, educational, professional or business conventions, conferences, or seminars
• Commercial transactions in the U.S., such as a merchant taking orders for goods manufactured abroad
• Undertaking independent research.
• Litigation related activities
Under a visitor for business visa, an individual may attend meetings and enter into discussions with current and potential clients regarding specifications on deals and contracts, plan goals, discuss progress in achieving goals; take orders; engage in commercial transactions; negotiate contracts; look into potential real estate sites for investment; sign leases on property.
Requirements/Limitation of Activities:
The above activities are acceptable but a few requirements must be met. The principal place of business must be abroad; if orders are taken- they must be sent abroad to fill; profits must be accrued to the foreign company abroad and not to the visitor directly in the U.S.; the activities must serve to further the interest of the foreign employer; there can be no remuneration for the US activities from the US – all compensation to the visitor should come from the foreign company abroad.
The B-1 visa does not allow local employment or labor for hire, which generally means that no hands-on work should be performed (limited exception to be discussed below under “B1 in lieu of H-1”).
Generally, the activities in the US should be incidental to the work that is principally performed outside of the US. The US activity should be a fraction of the normal work duties of the visitor in their home country.
Under the terms of the North American Free Trade Agreement (NAFTA) among the U.S., Canada and Mexico, business visitors from these countries have more relaxed rules regarding allowable activities in the U.S. under a B-1 visa. An appendix to NAFTA (Appendix 1603.A.1) lists such allowable activities.
If you are interested in more information on permissible activities under the B1 visitor visa, or would like to know other immigration options available to you, please feel free to contact our office.
The Visa Waiver Program
Citizens of certain countries are allowed to enter the United States without a B1/B2 visa under the Visa Waiver Program, as long as the purpose of the US visit is to engage in permissible activities normally under the B1/B2 visa. Under this program, each individual must enroll in ESTA and complete the online form prior to travel. The visitor must also possess a round-trip ticket, with few exceptions. ESTA will inform the applicant if they are VWP eligible. However, the ultimate decision on admission into the United States is at the sole discretion of the Customs and Border Patrol officer at the port of entry. So even if the ESTA program informs an individual they are eligible, the ultimate admission into the US can be denied.
Since ESTA will tell the applicant if he/she is eligible for VWP, it is recommended to apply early in case there is a problem and a visa must be applied for.
Upon entry “WB” is annotated on the individual’s admission stamp for individuals visiting for business. Entry is generally granted for 90 days.
If you are traveling back and forth very regularly for employment related activities, it is recommended to file for a formal B-1 visa for several reasons: 1) 90 days may not be enough time for your business activity 2) repeated entries under the VWP may result in higher scrutiny at the port of entry causing delays and inconvenience to the traveler. The officer at the port of entry may also deem you, erroneously, ineligible for entry due to fear you have participated or will participate in unauthorized employment, and send you back causing difficulty on following entries.
B-1 in lieu of H-1B:
A person may travel on a B-1 visa and actually perform work for a short duration (generally up to 6 months) in lieu of a H-1B visa, if they: are regularly employed by a foreign firm; there will be no salary or remuneration from a US source during their stay; the foreign firm has an office abroad and disperses a payroll abroad; the foreign firm has been paying the individual’s salary and will continue to do so; the individual has a Bachelor’s degree (or equivalent of a 4 year university degree) in a related field to the occupation, and such a degree is required in order to perform the professional activities in the US.
Although it is permissible to do this on the VWP, it is advisable to obtain the official B-1 visa with the specific annotation “B1 in lieu of H1” from a U.S. Embassy or Consulate. Obtaining a B-1 visa would protect you and avoid potential problems with a traveler’s US immigration history. For example, if an Immigration Officer presumes you have engaged in unauthorized employment in the past and denies your entry in the US – you will have to disclose that on later applications for visas, which could cause difficulty in obtiainging a visa in the future. Furthermore, with a legitimate B-1 visa is in your passport, the officer at the U.S. port of entry knows you have already gone through a level of scrutiny at the US Embassy/Consulate abraod, and a government official has deemed your activities legitimate. This may give them piece of mind when dealing with your application for admission, which will in turn make your life easier!
By: Attorney Momal Iqbal