B-1 Business Visitors: What Can You Actually Do on a B-1 Visa?
The B-1 temporary business visitor visa is designed for those who “will be participating in business activities of a commercial or professional nature” without engaging in employment within the U.S.
B-1 business visitors may be admitted to the United States to engage in certain legitimate, finite business activities other than the performance of skilled or unskilled labor. The B-1 visa is not appropriate for applicants who intend to engage in employment while in the U.S. In today’s post, we’ll take a closer look at who qualifies and what activities are allowed as a business visitor.
An Introduction to the B-1 Visa
The B-1 temporary business visitor visa is designed for those who “will be participating in business activities of a commercial or professional nature” without engaging in employment within the U.S. (USCIS.gov). B-1s must also have a residence in a foreign country which they have no intention of abandoning. During their business visit, B-1s must refrain from engaging in employment and intend to return to the home country by demonstrating sufficient social and economic ties. They must also be otherwise admissible to the U.S.
Once a B-1 visa is issued, a B-1 business visitor may be admitted to the U.S. for up to one year and may apply for extensions of stay with USCIS in increments of six months or less (qualifying religious missionaries may apply for up to one-year extensions of stay). In practice, B-1 visitors are typically admitted for a six-month period, however, Customs and Border Protection (CBP) has the discretion to admit B-1s for less than a six-month period and up to one year, depending on the business purpose.
8 CFR 214.2(b)(1).
The Visa Waiver Program
The Visa Waiver Program (VWP) allows citizens of 41 countries to travel to the U.S. for 90 days or less as a temporary visitor for business or pleasure without having to obtain a B visa at a U.S. consulate in advance. It is important to note that the limitations that apply to the activities of B-1 business visitors also apply to VWP business visitors. Additionally, business visitors that enter on the VWP will not be eligible to extend their stay or change to a different visa status in the U.S.
What are Permissible Business Visitor Activities?
The ImLaw team can review the details of a client’s proposed activities in the U.S. to determine whether they constitute a “business visit” and not “work.” Three crucial factors include whether the individual’s salary will be paid by a U.S. entity, whether any compensation goes beyond incidental expense reimbursement, and whether the benefit of the activity accrues primarily to the U.S. entity as local work or labor for hire.
The Foreign Affairs Manual (FAM) sets forth the following permissible B-1 business visitor activities:
Engaging in commercial transactions that do not involve gainful employment in the U.S. (such as a merchant who takes orders for goods manufactured abroad)
Negotiating contracts for work that will be performed outside the U.S.
Consulting with business associates
Litigating
Participating in scientific, educational, professional, or business conventions, conferences, or seminars on specified dates
Undertaking independent research
9 FAM 402.2-5(B).
A helpful definition of permissible B-1 business visitor activities is found in Matter of Hira, a Board of Immigration Appeals (BIA) decision:
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.
9 FAM 402.2-5(A).
Examples of real-world B-1 scenarios include:
Foreign nationals performing after-sales service, pursuant to a purchase or warranty agreement on products purchased from a company outside the U.S.
Foreign nationals seeking investments in the U.S., including for purposes of applying for an E-2 treaty investor visa or an EB-5 green card
Foreign nationals participating in short-term training and/or observing a business operation in the U.S.
Foreign nationals engaging in bona fide, permissible volunteer activities with a nonprofit charitable organization or religious organization
Professional athletes participating in a specified tournament and receiving prize money but not living and working in the U.S.
Crew members of a private yacht where the yacht is sailing out of a foreign home port, cruising in U.S. waters, and crew members’ duties are directly related to their foreign employment on the yacht
Medical doctors observing U.S. medical practices and consulting with colleagues, if not compensated by a U.S. source and no patient care is involved
Foreign nationals attending meetings of the Board of Directors for a U.S. corporation
Installation, Service, and Repair
ImLaw clients often have need for required after-sales service on products or goods purchased from a company abroad. The FAM also provides specific guidance for this scenario:
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. However, in such cases, the contract of sale must specifically require the seller to provide such services or training and the visa applicant must possess unique knowledge that is essential to the seller’s contractual obligation to perform the services or training and must receive no remuneration from a U.S. source.
9 FAM 402.2-5(E)(1).
What Qualifies as Incidental Expenses or Remuneration?
The FAM defines “Incidental Expenses or Remuneration” as follows:
A nonimmigrant in B-1 status may not receive a salary from a U.S. source for services rendered in connection with their activities in the United States. A U.S. source, however, may provide the applicant with an expense allowance or reimbursement for expenses incidental to the temporary stay. Incidental expenses may not exceed the actual reasonable expenses the applicant will incur in traveling to and from the event, together with living expenses the applicant reasonably can be expected to incur for meals, lodging, laundry, and other basic services.
9 FAM 402.2-5(F)(1).
Hybrid B-1 Visa Options
B-1 in lieu of H-1
Foreign nationals who demonstrate eligibility for H-1B status may be eligible for the B-1 in lieu of H-1B visa, which allows them to enter the U.S. to provide services in an H-1B specialty occupation. Such individuals are allowed to engage in productive employment for a limited time for such activity as long as the B-1 in lieu of H-1B does not receive a salary or other remuneration from a U.S. source, other than an expense allowance or reimbursement for incidental expenses. The B-1 in lieu of H-1B candidate must be paid by the overseas employer or business entity abroad, i.e., the source of the individual’s salary must be abroad. Unlike the H-1B category, no petition is required to be filed in advance with USCIS. Obstacles to obtaining the B-1 in lieu of H-1B include high scrutiny and inconsistent practices at U.S. consulates abroad as well as the unpredictable nature of U.S. Customs and Border Protection (CBP) officers at the ports of entry.
B-1 in lieu of H-3
Foreign nationals that qualify for H-3 trainee status may be eligible for the B-1 in lieu of H-3 visa, which allows them to enter the U.S. to participate in a bona fide, structured training program. The B-1 in lieu of H-3 cannot receive a salary or other remuneration from a U.S. source other than an expense allowance or reimbursement for incidental expenses. Although no petition with USCIS is required in advance, B-1 in lieu of H-3 applicants must demonstrate to the U.S. consulate abroad that they meet all requirements for H-3 status. This visa category is useful for individuals who are coming to the U.S. to engage in various kinds of training for their employers abroad. Similar to the B-1 in lieu of H-1, these visa applications can be highly scrutinized by U.S. consular officers.
9 FAM 402.2-5(F).
Is the B-1 Visa the Right Fit?
ImLaw is ready to assess whether your proposed business activities fall under the business visitor category, or whether a work visa is the proper fit. The first step is to submit our simple online inquiry form to reach our team. We look forward to hearing from you!