The Useful, Controversial Visa

The B-1 Visa

The business visitor visa, or B-1 visa, allows a foreign national to come to the U.S. for a temporary period to conduct business activities. Coming to the U.S. to conduct business means participating in limited activities that do not benefit a U.S. employer and/or would not require payment in the U.S.

Determining whether an activity is permissible for an individual in B-1 status can be complicated, and may often merit a review by immigration counsel. The following discussion highlights some of the more clear-cut examples of permissible and impermissible business visa activities.

Permissible B-1 activities include:

1. Engaging in commercial transactions which do not involve gainful employment in the U.S. (such as a merchant who takes orders for goods manufactured abroad);
2. Negotiating contracts;
3. Consulting with business associates;
4. Litigating;
5. Participating in scientific, educational, professional or business conventions, conferences, or seminars; or
6. Undertaking independent research.

After-Sales Service

Foreign nationals coming to the U.S. to install, service or repair machinery or equipment purchased from a company outside of the U.S. or to train U.S. workers to perform such services may also qualify if certain conditions are satisfied. The provisions allowing for this does not apply to foreign nationals seeking to provide building or construction work.

Observation

It is permissible for foreign nationals coming to U.S. on a B-1 visa to merely and exclusively observe the conduct of business or other professional or vocational activity. However, foreign nationals who seek to gain practical experience through long-term (more than three months) on-the-job-training or clerkships must qualify for the appropriate work visa (H, L or J).

Training

A foreign national may enter the U.S. on a B-1 visa to receive short-term (three months or less) classroom and/or on-the-job training in connection with his or her foreign employment. The foreign national should remain on foreign payroll and should not receive any salary or remuneration from a U.S. entity during his or her training in the U.S., and the individual’s training activities should not result in work product or services.

Business vs. Labor

A foreign national coming to the U.S. to perform skilled or unskilled labor cannot enter the U.S. as a business visitor. The B-1 visa is not intended for the purpose of obtaining and engaging in employment. A B-1 is not appropriate for activities for which persons are regularly employed, even if the foreign national remains on foreign payroll.

As stated above, it is often difficult to determine the difference between B-1 appropriate activities and activities that constitute skilled or unskilled labor. If the scenario does not clearly fit into any of the above situations, the safest course of action is to consult with immigration counsel for guidance.

Visa Waiver Program (VWP)

Citizens of certain countries can enter the U.S. for business under the Visa Waiver Program (VWP) without applying for a B-1 visa. The requirements and permitted activities are the same as for those entering with the B-1 visa stamp, the only difference being that those entering under the VWP are not required to obtain a B-1 visa stamp. The 36 countries currently participating in the VWP include: Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, and the United Kingdom. Canadian nationals are also able to enter the U.S. for business or pleasure without applying for a visa. From 2005 to 2010, 98 million people visited the U.S. using the VWP.

Although VWP participants do not need to apply for visas at the consulate, they must submit biographical information and answer eligibility questions through the Electronic System for Travel Authorization (ESTA) before traveling to the U.S. Travelers whose ESTA applications are denied must apply for and obtain a U.S. visa before traveling to the U.S.

Business Visitor Visa: Politics and Controversy

The use of the business visa has also been highlighted in recent years leading to increased and ongoing scrutiny of visitor visa applicants at U.S. embassies and of those seeking entry to the U.S. A suit filed against one technology company in February of 2010 prompted many questions at the agencies and from politicians. The suit was brought by an employee of Infosys Technologies Limited, Inc. The employee alleged that the company was misusing the visitor visa category. The allegations caught the attention of Senator Charles Grassley who wrote a letter to the Department of State Secretary Hilary Clinton and the Department of Homeland Security Secretary Janet Napolitano expressing concern about how Infosys Technologies Limited, Inc., a subsidiary of an Indian company, was alleged to have used the B-1 visa program to bring its foreign workers into the U.S. from India under the pretext of attending meetings, but may have instead come to the U.S. to work for the U.S. company.

Following the press the lawsuit and Senator Grassley’s letter received, there have been increasing reports of stringent consular reviews of visitor visa applications, in particular at the U.S. consulates in India. Given this higher lever of scrutiny, it has become imperative that B-1 visa applications be meticulously prepared with information and documentation confirming the valid, legal reasons for the trips.