Certain activities are allowed, and others are prohibited, under the B-1 Business Visitor visa category. The case, Matter of Hira, laid out the general guideline for what business activities are permitted. The decision states:
The significant considerations to be stressed are that there is a clear intent on the part of the alien to continue the foreign residence and not to abandon the existing domicile; the principal place of business and the actual place of eventual accrual of profits, at least predominantly, remains in the foreign country; the business activity itself need not be temporary, and indeed may long continue; the various entries into the United States made in the course thereof must be individually or separately of a plainly temporary nature in keeping with the existence of the two preceding considerations.
In sum, the B-1 visa holder needs to maintain residence in a foreign country, and the main place of business where profits are also accrued must be in a foreign country. Further, payment to the B-1 visa holder should generally occur abroad, although payment from outside the US may be arranged through a US financial institution. However, expenses and per diem arrangements while inside the US do not affect B-1 eligibility. Keep all of these factors in mind while you are determining whether you or your employee is eligible for a B-1 visa.
The Department of State’s Foreign Affairs Manual (FAM), United States Customs and Border Patrol’s Inspector’s Field Manual (IFM), and the United States Citizenship and Immigration Services Operating Instructions (OI) provides guidance to executive branch officials on specific activities that are allowed and prohibited to B-1 visa holders. The following is a discussion of such activities with explanations:
- Obtaining and engaging in employment in the US- INA § 101(a)(15)(B) specifically excludes from this classification aliens coming to the US to perform skilled or unskilled labor. Thus, B-1 visas are not intended for the purpose of obtaining and engaging in employment within the US. (9 FAM 41.31 N7)
- Cannot enroll in a course of study- B-1 visa holders cannot enroll in a course of study. You must first either obtain an F-1 or M-1 visa from a consular office abroad, or obtain a change of status (COS) to an F-1 or M-1 visa, in order to enroll in a course of study. (8 CFR §§ 214.2(b)(7), 248.1(c)(3))
- Building or Construction Work- After International Union of Bricklayers v. Meese, a new regulation was issued modifying the existing USCIS OI to not allow on site or in plant building or construction, even if it is pursuant of an after sale contract.
- Exception: Supervising or training for business or construction that does not involve “hands on” work is allowed, if it is pursuant of a contract of sale.
- Engaging in commercial transaction not involving gainful employment: If otherwise eligible, aliens should be classified as B-1 visitors, if they are traveling to the US to engage in activity such as:
- Merchants taking orders for goods manufactured abroad;
- Negotiating contracts;
- Consulting with clients or business associates;
- Litigating; and/or
- Undertaking independent research (9 FAM 41.31 N8) (IFM § 15.5(c))
- Participating in scientific, educational, professional, religious, or business conventions, conferences, or seminars
- A person may receive an honorarium and incidental expenses for “usual academic activity” from an academic institution as long as it does not last more than 9 days at a single academic institution and the foreign national has not accepted more than 5 such honoraria in a 6-month period.
- Personal/domestic servants accompanying citizens returning to the US who temporarily or permanently reside in the US, granted that the US citizen meet certain requirements specified in OI § 214.2 (b)(1). The US citizen must establish:
- that they are subject to frequent international transfers lasting two years or more as a condition of their employment, and that they are returning to the US from such an assignment;
- their current assignment in the United States will not be over 4 years;
- the personal or domestic servant has been employed with them abroad for at least six months prior to admission into the United States;
- the servant will reside in their household and will be provided private room and board, without cost to the servant;
- the servant will work only for them; and
- both the employer and employee have signed a contract which meets all of the guidelines specified in OI § 214.2 (b)(1).
- Personal/domestic servants of B, E, F, H, I, J, L, O, P, Q, R, and TN visa holders, provided the employee can show the following:
- They have not abandoned their residence abroad.
- They have worked for the employer for one year, or have had on-going employment relations with him, and the employee has at least one year prior experience as a servant.
- They must be paid by contract the prevailing wage of a domestic servant
- They must be provided pamphlets regarding rights and the consular officer must confirm that she has read and understood the pamphlet
- Please note that legal permanent residents cannot bring servants into the US because it indicates immigrant intent on the part of the servant. (OI § 214.2 (b)(2))
- Professional athletes who receive no salary, only tournament winnings. Examples include golfers, tennis players, and racing drivers.
- Exception for personnel of foreign airlines engaged in international transportation of passengers and freight seeking to enter the US for employment with the airline in an executive, supervisory, or highly technical capacity- Aliens coming temporarily to the US to fill a position of a permanent nature are generally not admissible under B-1 visas. However, personnel of foreign airlines engaged in international transportation and freight seeking employment within the US in an executive, supervisory, or highly technical capacity may be admitted as B-1. Such B-1 personnel must meet the criteria established for employees of treaty trades described in 22 CFR 41.51 (c).
- Alien airline personnel are required to obtain an E-1 visa if a treaty of commerce and navigation is in effect between the US and the country of the applicant’s nationality.
- A foreign medical student seeking to take an “elective clerkship” without receiving payment.
- An alien who is a member of the board of directors of a US corporation, coming to the US for a board meeting.
- Aliens installing equipment pursuant to contract of sale- B-1 visitors may come to the US to install, service, or repair equipment. Three requirements should be kept in mind, however:
- The contract of sale must specifically require the seller to provide the service;
- The alien must have specialized knowledge essential to fulfilling the seller’s contractual obligation; and
- The alien can receive no payment from an American source.
- As mentioned in the list of prohibited activities, building or construction on site or in plant is not allowed. (IFM § 15.4(b)(1)(B)(3), OI § 214.2(b)(5))
- Commercial Truck Drivers Engaged Only in International Hauling- Commercial truck drivers entering the US on a B-1 visa may only transport goods across international borders.
- The goods may be picked up in a country other than the United States and hauled to the United States;
- The goods may be picked up in the United States and hauled to another country; or
- The goods may be picked up in another country and delivered to yet another country. Example: An alien driver under B-1 visa status may pick up goods in Mexico and haul them to Canada
- A driver bringing goods from Canada or Mexico may not load, haul, or deliver cargo from one US destination to another US destination. (IFM § 15.5(c)(1)(E))
- Tour Bus Operators- Tour bus operators are treated similarly to commercial truck drivers under IFM § 15.5(c)(1)(E). Passengers cannot be transported by a B-1 tour bus driver from one US destination to another. If passengers are dropped off in the US, the tour bus driver must either go back empty or pick up the passengers and transport them back out of the US.
- Participants in voluntary service programs conducted by recognized religious bodies or nonprofit charitable organizations. The alien must present a written statement provided by the organization containing the following items
- His/her name
- Date and place of birth
- Address of their foreign permanent residence
- The name and address of the initial US destination
- Anticipated duration of assignment
- Horse race track personnel- An alien coming to perform services for a foreign based employer as a jockey, sulky driver, trainer, or groom. The employer and the alien seeking B-1 status need not be the same nationality. The alien may not work for any other employer while in the US, be they foreign or domestic. (OI §214.2(b)(7)) (IFM §15.4(b)(1)(B)(24))
- Observation of the conduct of a business or other professional or vocational activity that does not involve hands-on activity. The alien must pay for his/her own expenses. (IFM (b)(B)(19))
The above list contains the majority of examples of activities allowed and prohibited to B-1 business visitors. If your particular situation is not included in the above list, you can always reference the general rule established in Matter of Hira. The B-1 visa holder needs to maintain residence in a foreign country, and the main place of business where profits are also accrued must be in a foreign country. Finally, payment of the B-1 visa holder should occur abroad, except for expense or per diem payments while in the US. If the particular activity you plan to undertake is not among those directly mentioned in the federal regulations and guidelines, however, it could be more difficult that the activity is permitted under B-1 visa status.
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