Working On a B-1 Visa Can Be TrickyWorking On a B-1 Visa Can Be Tricky – Describe the Work Carefully To Avoid Visa Refusal or Worse – A BanWorking On a B-1 Visa Can Be Tricky

The policy of the U.S. Government is to facilitate and promote legitimate international travel and the free movement of people of all nationalities to the United States, consistent with national security and public safety concerns, both for the cultural and social value to the world and for economic

purposes.¹ The visa examiner must be satisfied that the applicants have overcome the presumption that they are intending immigrants.

A “B-1” visa may be used in furtherance of one’s business interests within the US and outside the US.² For instance, an individual interested in starting a business in the United States by way of an investor visa might utilize the B-visa to visit the United States to conduct necessary business diligence, establish relationships.

The applicant³ may be eligible for a B-1 (Business) visa if he/she will be participating in very specific and well described business activities in the United States when the visa is requested. Those with B-1 visas cannot “work” in the U.S. in the traditional sense (payrolled to a US company) and so great care must be exercised to avoid violating the visa status. Review the descriptions of what “work” is allowed and then stick to these tightly.

Visa delays can ensue if the description of the activities contemplated do not fit squarely within the recognized categories. An “advisory opinion” (“AO”) must be requested before the issuance of a B-1 visa in any case involving temporary employment in the United States, other than as clearly set forth in the manual. The Department recognizes that there are cases which might possibly be classifiable B-1, but which do not fit precisely within one of the classes described. The delay caused by the need for an AO could be almost indefinite depending on where the visa application is filed.

⁴ 9 FAM 402.2-5(A) (b) It can be difficult to distinguish between appropriate B-1 business activities, and activities that constitute skilled or unskilled labor in the United States that are not appropriate in B status. The clearest legal definition comes from the decision of the Board of Immigration Appeals in Matter of Hira, affirmed by the Attorney General. Hira involved a tailor measuring customers in the United States for suits to be manufactured and shipped from outside the United States. The decision stated that this was an appropriate B-1 activity because the principal place of business and the actual place of accrual of profits, if any, was in the foreign country. Most of the following examples of appropriate B-1 activity relate to the Hira ruling, in that they relate to activities that are incidental to work that will principally be performed outside of the United States.

⁵ The Department, DHS, and the Social Security Administration (SSA) have agreed that certain non-immigrant applicants who are coming to the United States to pursue certain employment activities incidental to the applicants’ professional business commitments, and who will receive remuneration or salary from sources in the United States, may apply for a social security card. Although for immigration purposes these activities might not constitute “employment in the United States,” even with a U.S. source of income, the activities might be considered “employment” for other purposes or by other agencies, such as the Internal Revenue Service (IRS). To qualify for a social security card, the employee must have the B-1 visa annotated to identify the employer for whom the employee will be working in the United States and the applicable 9 FAM reference. This annotation will enable the social security officer to quickly identify these applicants as being eligible for issuance of a working social security card which in turn will enable the employer and employee to comply with legal requirements such as participation in the social security fund, IRS tax payments, workmen compensation and any other work-related requirements. 9 FAM 402.2-5(I)

⁶ Each personal employee or domestic worker accompanying or following to join an employer, is made aware of their legal rights under Federal immigration, labor, and employment

laws. This includes information on the illegality of slavery, peonage, trafficking in persons, sexual assault, extortion, blackmail, and worker exploitation in the United States. 9 FAM 402.2-5(D)(6).

⁷ 9 FAM 402.2-5(D)(1) This provision is not addressed in detail here due to the large scope of the analysis – please refer to a separate analysis by author.

⁸ Employees of foreign exhibitors at international fairs or expositions who are not foreign government representatives and do not qualify for “A” classification ordinarily are classified B-1. 9 FAM 402.2-5(E)(6) (2)

• Participating in very short-term training related to the business or company of employment (not a registered program under the Students and Exchange Visitor Program);
  • An applicant employed by a foreign employer and paid by same attending a training program classifiable as H-3;⁹ (or)
  • An applicant who is coming to the United States merely and exclusively to observe the conduct of business or other professional or vocational activity may be classified B-1, if the applicant pays for their own expenses);¹⁰ (or)
  • An applicant who is studying at a foreign medical school and seeks to enter the United States temporarily to take an “elective clerkship” at a

U.S. medical school’s hospital without remuneration from the hospital. The medical clerkship is only for medical students pursuing their normal third- or fourth-year internship in a U.S. medical school as part of a foreign medical school degree;¹¹ (or)

• A medical doctor whose purpose for coming to the United States is to observe U.S. medical practices and consult with colleagues on latest techniques, if no remuneration is received from a U.S. source and no patient care is involved.¹²
  • Exploring investment opportunities including but not limited to preparing for opening a business in the United States¹³ (including leasing space and interviewing prospective employees) and to examine or monitor potential qualifying investments if the applicant otherwise establishes qualification for a B visa, so long as they do not intend to enter the United States to pursue “adjustment of status.” Applicants seeking investment inside the US for either US or overseas deployment, like all B-1/B-2 travelers, are precluded from performing productive labor or from actively participating in the management of the business while in the United States in B status;
  • Attending conference or other business event, presenting products at a trade show or expo; Lecturing at an event;
  • Taking orders for goods produced and located outside the United States;
  • Conducting business diligence (investor seeking, site visitation or surveying for purpose, consulting with clients) and/or associates, contracts negotiation, interviewing potential hires, etc.);

Employment Incidental to Professional & Business Activities That Are Not Well Known – ¹⁴

An applicant may be eligible for a B-1 business visa if they meet the criteria of one of the categories less well known to the public.

• Applicants Normally Classifiable H-1 or H-3 (B in Lieu of H) – There are circumstances in which an applicant is best fit within the H-1 (skilled worker) or H-3 (skills trainee) if the applicant were to remain within the US for a period of time in excess of the B-1 initial stay duration (six months). However, the shortness of the duration and policy considerations make for this limited exception.¹⁵
• The applicant while inside the US provides services which are H-1 classified or conducts or receives training that is H-3 qualified;
  • No remuneration from the US source other than the expense allowance and other reimbursements;¹⁶
  • Foreign sourced remuneration (even if by an US affiliated company) is considered foreign paid;
  • The foreign employer of the applicant must have an office overseas and the payroll must be paid overseas.
• Members of Religious Groups – have certain work privileges on a B-1 visa:
  • Members of religious groups proceeding to the United States to engage in a religious tour who do not plan to take an appointment with any one place of worship and who will be supported by offerings contributed at each religious meeting.
  • Members of religious groups temporarily exchanging pulpits with U.S. counterparts who will continue to be reimbursed by the
• foreign religious entity and will draw no salary from the religious entity in the United States.
• Members of religious groups, whether ordained or not, entering the United States temporarily for the sole purpose of performing missionary work on behalf of a denomination, so long as the work does not involve the selling of articles or the solicitation or acceptance of donations and if the member will receive no salary or remuneration from U.S. sources other than an allowance or other reimbursement for expenses incidental to the temporary stay.
• In cases where an applicant is coming to perform missionary services for a religious organization, and does not qualify for R status, the B-1 status remains an option if the work can be defined as a “Voluntary Service Program.”¹⁷
• Participants in Voluntary Service Programs – A “voluntary service program” is an organized project conducted by a recognized religious or nonprofit charitable organization to assist the poor or the needy or to further a religious or charitable cause.
  • Applicants participating in a voluntary service program benefiting U.S. local communities, who establish that they are members of, and have a commitment to, a specific recognized religious or nonprofit charitable organization. No salary or remuneration should be paid from, other than an allowance or other reimbursement for expenses incidental to the volunteers’ stay in the United States.
  • The program may not, however, involve the selling of articles and/or the solicitation and acceptance of donations. The burden that the voluntary program meets the DHS definition of “voluntary service program” is placed upon the recognized religious or nonprofit charitable organization, which must also meet other criteria set out in the DHS Operating Instructions regarding voluntary workers.
  • The written statement issued by the sponsoring organization (which must be attached to the passport containing the visa for presentation to the DHS officer at the POE) includes the anticipated duration of the stay as well as other details of the applicant.
• Members of Board of Directors of U.S. Corporation – A foreign citizen who is on the board of directors of a US corporation is entitled to compensation for director activities including:
  • Meetings of the Board of Directors
  • “Other Functions” resulting from membership on the Board of Directors.
• Professional Athletes – There are three classes of athletes the B-1 reaches – equestrian, individuals and teams. There are other visas for athletes who wish to work for “pay” in the US (i.e., “P” ) and the presence of those other classes allows the USCIS to ring fence athletes when performing in the B-1 visa status.
  • Equestrian who performs services on behalf of a foreign-based employer as a jockey, sulky driver, trainer, or groomer;
  • Individual athletes who receive no salary or payment other than prize money for their participation in a tournament or sporting event
  • Foreign-based team competing with another team if the B-1 can demonstrate that the team is principally based outside the US, payment of the players is “principally accrued” outside the US, and the team is either part of an “international” league or the sport has “an international dimension.”

The power of lobbyists is seen in the addition of “amateur hockey players” to the B-1 list if the players meet particular additional criteria. The National Hockey League (NHL) certainly earned the applause of happy players in Canada.

• Entertainers and Artists – Almost all entertainers and artists who are paid to perform should be considered for “P” visa status. There is a small exception within B-1 for professionals (distinguished from amateurs covered in B-2) who wish to perform in the US for specific events or competitions.
  • Cultural programs sponsored by a national government with a non- paying audience;¹⁹
  • Competition without compensation other than prize (money or other) and expenses;²⁰
  • Musicians coming to record but offering no public performances and distributing the recording only outside the US;²¹
  • Artists who are not under a US employer contract and do not intend to “regularly” sell artwork in the US;²²
• Yacht Crewmen – This is a very popular B-1 permitted employment for younger adults who take classes to gain two types of certifications which then make them employable by private yachts.²⁴ Non-U.S. crew members to work on ships in U.S. waters and travel to the United States for business or tourism²⁵;
  • The B-1 must have the minimum required certifications to qualify for the crewman exception – even if working ashore – STCW Basic Safety Training and a Seafarers Medical Certificate (ENG1).
  • Typical mistake of repeat crew is the failure to renew these certificates STCW Basic Safety Training is good for five years and a Seafarers Medical Certificate (ENG1) is good for two years. If either is expired and even if there is a job underway – the B-1 will most likely have status revoked.
  • A spouse, child, or other applicant who wishes to accompany a crewmember entering the United States as a non-immigrant under INA 101(a)(15)(D) must independently be able to qualify for another visa classification, such as B-1/B-2.²⁶
• Outer Continental Shelf – Oil rig and platform, other vessels, and Coast Guard regulated ocean going vehicle workers (whether payrolled or contractors) who have a letter from the US Coast Guard²⁷ authorizing the applicant for such work are B-1 authorized to transit the US on the way to and from the Outer Continental Shelf (OCS),²⁸ and to perform work for hire while so employed and based. An “OCS activity” is defined in USCG regulations (33 CFR 140.10) as “any offshore activity associated with the exploration for, or development or production of, the minerals of the [OCS].” This definition refers only to oil and gas activity occurring on the OCS; it does not include wind farm activities. Activities occurring on the OCS that do not involve “minerals of the OCS,” such as a wind farm project, are not considered to be an OCS activity by the USCG so an applicant seeking a visa to transit or travel to the OCS would not have a USCG letter to present. As the OCS is not within the “United States” for visa purposes, the USCIS may issue a B-1 visa to an applicant who is otherwise eligible for the B-1 visa and who seeks to transit or travel to the OCS for non- OCS activity.
• Commercial or Industrial Workers – An applicant coming to the United States to install, service, or repair commercial or industrial equipment or machinery purchased from a company outside the United States or to train U.S. workers to perform such services.²⁹ An applicant may also use the B-1 for supervising or training other workers engaged in building or construction work, but so long as not actually performing any such building or construction work.

If the B-1 is coming to secure funding for a new business, for example, the B-1 cannot remain in the United States in B-1 status to start actual business operations or to manage the business in the US. A change visa status is required to another classification that authorizes employment in the United States.

Compare the frequent use of the B-2 (Tourist) visa to job search. The B-2 is not a “look for work” visa despite what the Internet says. A private yacht may offer employment to a B-2 Tourism visa holder, for example. However, no work can start until the B-2 tourist leaves the US, and returns through the Port of Entry showing the offer of work (sponsor letter) and having the B-1 side of the visa stamped upon admission.³⁰ The general rule remains – tourists may not work inside the US.

More specifically, the examples of permitted activities (listed above) are not all inclusive nor a safe harbor for the B-1 visitor. The USCIS or other agency will engage in its own investigation of the conduct, and evaluate independently whether the B-1 engaged in any activity or performed any service that would constitute local employment for hire within the United States. The investigation will review evident of the B-1 visa holder’s intent.

Circumstantial Evidence of Intent – When looking at whether business related activities are permitted or should be prohibited as “work” under a B-1 visa, the USCIS will consider the following according to several commentators:

• Is the principal business located abroad? This is just one factor that can be relevant and can be important as there could be a presumption that someone in the U.S. is working if the principal business is located in the U.S. and the main activities of the business are conducted in the U.S.
• Are the profits ultimately received abroad? The reasoning here is similar to above and if the profits are received abroad, this may be one factor to support an argument that a foreign national is visiting the U.S. to conduct permitted activities.
• What is the purpose of the visit? For example, a clear indication to attend specific business meetings or a conference would suggest that the foreign national is not entering the country to “perform fee for hire work” as interpreted by the CBP.
• Does the foreign national intend to return to his home country? In order to obtain a B visa, you must provide the consulate with compelling evidence of your ties to your home country. This same evidence can be used to evaluate whether a foreign national is working in the U.S.
• How often and over what period of time has the foreign national been in the U.S.? In one case, a Canadian national who regularly visited the U.S. for years for short durations was ultimately denied entry when he increased the number of times that he visited in a given year and the duration of the stays. There is not any magic number here but many foreign nationals are either warned or denied entry because their visiting pattern (many visits for long periods of time) suggest they are working in the U.S.
• Is the work being performed by the foreign national while in the U.S. secondary or supplemental to work that is being primarily performed in a foreign country? One commentator wrote that if a foreign company sells computers in their home country and they send a sales person to the U.S. to sell computers and meet with clients, there may be a strong argument that the sales person is working but in a permitted manner under the current interpretations of the rules depending upon other factors. Compare to whether the sales person comes to the U.S. to attend meetings or attend a conference at which sales are made then these activities are “supplemental” or ancillary to those sales made by the foreign company in its other markets. In one case, a tailor visited the U.S. and took customer measurements and orders, which were then sent back to Hong Kong where the clothing was produced. The fact that he was only taking measurements was considered “supplemental” to the company’s main activity which was to produce clothes and therefore a permitted activity in the “B” visa status.

Protection from making an immigration law error that could bar a B-1 in the future is available through the USCIS. While B-1 non-immigrants are not required to obtain an Employment Authorization Document (EAD) from USCIS before engaging in their approved B-1 activities, they may wish to evaluate whether to seek and receive an EAD by filing Form I-765. The EAD doesn’t provide immunity to the B-1 but may well reduce the opportunities for misunderstandings.

Eligibility Criteria Most Overlooked – The B-1 visa applicant must demonstrate the following in order to be eligible for a B-1 visa:

• The purpose of your trip is to enter the United States for business of a legitimate nature;
• You plan to remain for a specific limited period of time ³¹ and your plans are “specific” and “consistent” with the stated purpose of the trip;³²
• You have sufficient funds to cover the expenses of the trip and your stay in the United States;
• You have a residence outside the United States that you have no intention of abandoning;³³
• Other binding ties that will ensure your return abroad at the end of the visit;
• No prior grounds for inadmissibility to the United States.

Length of Stay – Up to 6 months; maximum total amount of time permitted in B-1 status on any one trip is generally 1 year. Depending on the context, the number of times you can visit the U.S. with a B visa varies. B1 visas are multiple-entry, meaning they can be used to enter the U.S. more than once. There’s no set limit to the number of times you can visit the U.S. in a year, and it depends on the specific circumstances and discretion of the CBP officers who review your case each time you enter. It’s important to remember that the B1/B2 visa is intended for temporary, occasional visits for business, tourism, or medical treatment, and not meant to be used for living long-term in the U.S. or spending the majority of your time in the country. If officers think you’re trying to live in the U.S. through frequent or extended visits, or if you’re not maintaining significant ties to your home country, they may suspect you’re misusing the visa, which could lead to denial of entry or future visa issues.

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References

1 9 FAM 402.2-2(F)
4 9 FAM 402.2-5(A) (b) It can be difficult to distinguish between appropriate B-1 business activities, and activities that constitute skilled or unskilled labor in the United States that are not appropriate in B status. The clearest legal definition comes from the decision of the Board of Immigration Appeals in Matter of Hira, affirmed by the Attorney General. Hira involved a tailor measuring customers in the United States for suits to be manufactured and shipped from outside the United States. The decision stated that this was an appropriate B-1 activity because the principal place of business and the actual place of accrual of profits, if any, was in the foreign country. Most of the following examples of appropriate B-1 activity relate to the Hira ruling, in that they relate to activities that are incidental to work that will principally be performed outside of the United States.
7 9 FAM 402.2-5(D)(1) This provision is not addressed in detail here due to the large scope of the analysis – please refer to a separate analysis by author.
9 9 FAM 402.2-5(F)(4)
10 9 FAM 402.2-5(E)(3)(c )
11 9 FAM 402.2-5(E)(3)(b)
12 9 FAM 402.2-5(F)(3)
13 9 FAM 402.2-5(C)(7)
14 9 FAM 402.2-5(C)
15 9 FAM 402.2-5(F)
17 9 FAM 402.2-5(C)(2)
18 9 FAM 402.2-5(C)(8)
19 9 FAM 402.2-5(G)(1)
20 9 FAM 402.2-5(G)(2)
21 9 FAM 402.2-5(G)(4)
22 9 FAM 402.2-5(G)(5)
23 9 FAM 402.2-5(G)(3)
26 9 FAM 402.8-6
31 9 FAM 402.2-2(D)(c). The applicant must have specific and realistic plans for the entire period of the contemplated visit.
32 9 FAM 402.2-2(D)(b) The period projected for the visit must be consistent with the stated purpose of the trip. The applicant must establish with reasonable certainty that departure from the United States will take place upon completion of the temporary visit.
33 9 FAM 402.2-2(C) The term “residence” is defined in INA 101(a)(33) as the place of general abode; the place of general abode of a person means their principal, actual dwelling place in fact, without regard to intent. Only the following visa categories are subject to the residence abroad requirement: B, F, H (except H-1), J, M, O-2, P, and Q. When adjudicating this requirement, it is essential to view the requirement within the context of the visa classification. See for a more in-depth definition of residence abroad.