For many business people the “B-1 Visitor for Business” visa can satisfy their needs. CILG stands prepared to advise and assist in the preparation of these cases in appropriate situations. Extreme care must be taken so as to assist business people in avoiding allegations that they have worked without authorization in the United States.
B visa is split into two categories, namely, visitors for business (B-1) and visitors for pleasure (B-2). This section deals only with the visitor for business section.
B-1 Visitor for Business is defined as including:
…consultations and other legitimate activities of a commercial or professional nature. It does not include local employment or labor for hire. 22 CFR 41.31 (b)(1). U.S. Consular officials are encouraged to admit those people in B-1 who are seeking admission for purposes that generally involve:
… business activities other than the performance of skilled or unskilled labor. 9 FAM 41.31, n 7 (a). The section of the Foreign Affairs Manual further states:
… the issuance of a B-1 visa is not intended for the purpose of obtaining and engaging in employment while in the United States. However, admittedly the FAM states that:
[i]t can be difficult to distinguish appropriate B-1 business activities, and activities that constitute skilled or unskilled labor in the United States.
The clearest definition of what is acceptable and what is not comes to us from the case of In re Hira, 11 I. & N. Dec. 824 (BIA, 1966), which was decided by the Board of Immigration Appeals. The Board stated that a B-1 is appropriate if the principal place of business and the actual place of accrual of profits was in a foreign country.
The B-1 visitor would be engaging in activities such as the negotiation of contracts, consultation with business associates, attendance at conferences or conventions, making phone calls, and related matters. An academic or scholarly B-1 visa holder can receive an honorarium and also incidental expenses for what is considered “usual academic activity” so long as the activity lasts no longer than 9 days at one academic institution and the B-1 visa holder has not accepted more than 5 honoraria in a 6 month period. If the scholar or academic wishes to come to the U.S. to teach longer term at an institution of higher education, the university or college should pursue an H-1b for that scholar or academic.
A popular use of the B-1 is commonly called the
B-1 in lieu of an H-1b. The Foreign Affairs Manual lists several situations where a person can come into the U.S. on a B-1 visitor for business classification and one of those situations is the B-1 in lieu of an H-1B. The FAM states:
|“There are cases in which aliens who qualify for H-1 or H-3 visas may more appropriately be classified as B-1 visa applicants in certain circumstances, e.g. a qualified H-1 or H-3 visa applicant coming to the United States to perform H-1 services or to participate in a training program. In such a case, the applicant must not 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 Note, 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, and that the alien meets the following criteria:|
|(1)||With regard to foreign-sourced remuneration for services performed by aliens admitted under the provisions of INA 101(a)(15)(B), the Department has maintained that where a U.S. business enterprise or entity has a separate business enterprise abroad, the salary paid by such foreign entity shall not be considered as coming from a
|(2)||In order for an employer to be considered a
foreign firmthe entity must have an office abroad and its payroll must be disbursed abroad. To qualify for a B-1 visa, the employee must customarily be employed by the foreign firm, the employing entity must pay the employee’s salary, and the source of the employee’s salary must be abroad.
|(3)||An alien classifiable H-2 shall be classified as such notwithstanding the fact that the salary or other remuneration is being paid by a source outside the United States, or the fact that the alien is working without compensation (other than a voluntary service worker classifiable B-1 in accordance with 9 FAM 41.31 N9.1-5. A nonimmigrant visa petition accompanied by an approved labor certification must be filed on behalf of the alien.”|
This is commonly called the B-1 in lieu of H-1b. The FAM states:
A nonimmigrant in B-1 status may not receive a salary from a U.S. source for services rendered in connection with his or her activities in the United States. A U.S. source, however, may provide the alien with an expense allowance or reimbursement for expenses incidental to the temporary stay. Incidental expenses may not exceed the actual reasonable expenses the alien will incur in traveling to and from the event, together with living expenses the alien reasonably can be expected to incur for meals, lodging, laundry, and other basic services.
Back in 1993, the U.S. Government tried to put in place new regulations that restricted the use of the B-1 visitor for pleasure category by people who would otherwise be classified as H-1b candidates. The regulations never made it to final form, but they stated the unwritten policy interpretations of the U.S. Government in any event. The regulations stated that a key factor to consider was whether labor was intended to be for a U.S. employer acting in a capacity that generally was considered open to competition by U.S. workers. The regulation hit upon a key factor, namely that in the Matter of Hira case the taking of orders for his foreign employer was the main function of Mr. Hira and the taking of the measurements was incidental to that process. The regulation compared the Matter of Hira case to Matter of M, 2 I. & N. Dec. 240 (BIA 1945) where a U.S. employer sought to employ a Canadian dancer under contract. The primary purpose was for the dancer to dance. This was labor and not incidental to a business purpose. The U.S. Government did not wish to develop a concrete definition of business because there exists the two-fold goal of not impeding international commerce while protecting U.S. workers. The Government believed it was just too difficult to provide a cookie cutter definition to each case. However, the proposed rule really emphasized Matter of Hira and cited 5 characteristic points about the case: (1) the non citizen’s activity must be commercial in character; (2) the non citizen must intend to maintain his foreign residence and not abandon his existing domicile; (3) the salary must come from abroad; (4) the place of business and actual place of eventual accrual of profits, at least predominantly, must be in a foreign country; (5) although the business activity need not be temporary, the non citizen’s stay here must be temporary.
Many other activities can be undertaken in the B-1 and they include:
|B-1 in lieu of a J-1 Exchange Visitor visa. The U.S. government may fund travel by visitors to the U.S. to engage in activities pursuant to their position. Foreign Service National Employees, who are employed by U.S. Embassy’s abroad may need to visit the U.S. for reasons that may not fit the J-1 visa. A State Department Cable allows these individuals to be issued a B-1.|
|An H-3 trainee whose salary will be paid abroad, but who will only receive reimbursement of expenses or an expense allowance.|
|Certain religious workers and ministers. This should be discussed with counsel, as there is a specific category for religious ministers and workers under the R-1 program.|
|Domestic or personal servants of U.S. employees who live permanently in another country, or who return to the U.S. temporarily.|
|Domestic or personal servants of those in B, E, F, H, I, J, L, O, P, Q or R status if certain qualifying criteria are met.|
|Professional athletes receiving no salary and only possible tournament money.|
|Airline employees who would be considered employees of a foreign company and, thus, required to secure an employee of an
E Treaty Trader or Investorvisa, where there is either no treaty of trade and commerce with the foreign nation, or the employee does not hold the nationality of the foreign nation with which the treaty exists.
|Foreign medical students taking elective internships without remuneration.|
|Foreign national members of Boards of Directors of U.S. Corporations, who are coming to the U.S. to participate in board meetings.|
|Personnel or foreign corporations setting up a U.S. subsidiary.|
|Foreign investors who will be pursuing an E-2 visa, but whose businesses are not yet established in a manner that allows the foreign investor to qualify for an E-2.|
|Personnel of foreign companies installing equipment as part of a contract for sale of goods.|
|International truckers involved in international hauling.|
|Tour bus operators.|
|Foreign nationals observing the activities of a business so long as their activity does not involve hands on work.|