• Permissible and Impermissible Activities for B-1 Temporary Business Visitors
  • October 1, 2015 | Author: Alexander Joseph Segal
  • Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office
  • Pursuant to INA § 101(a)(15)(B), B-1 Temporary Visitor Visas are available for foreign nationals who are coming to the United States to conduct business, but not to perform skilled or unskilled labor or engage in employment. Furthermore, in order to be granted a B-1 Visa, an applicant must demonstrate to the satisfaction of a consular officer that, pursuant to regulations found in 8 C.F.R. § 41.31(a), he or she can complete the purpose of the business visit in the time allotted by a B-1 Visa and that the applicant will exit the United States and has a place to return to at the expiration of B-1 status.

    Upon obtaining a B-1 Visa, both B-1 business visitors must ensure that they do not engage in “employment.” Engaging in employment, rather than permissible business activities, may subject the B-1 business visitor to inadmissibility from the United States. Accordingly, American entities must ensure that they do not enter into any arrangements with B-1 business visitors, since doing so may subject the employer to sanctions under statutes that prohibit employing aliens who lack employment authorization.

    While the line between “business” and “employment” is sometimes blurry, regulations and immigration agency guidance help clarify what is permissible and what is not. Pursuant to regulations found in 8 C.F.R. § 41.31(b)(1), “business” is defined as including “conventions, conferences, consultations, and other legitimate activities of a commercial or professional nature.” It excludes “local employment and labor for hire.”

    The Foreign Affairs Manual (FAM) goes into more detail, specifying in 9 FAM 41.31 N11.1 that a B-1 business visitor may not receive a salary or remunerations from an American source for services rendered in the United States, but may receive an allowance or reimbursement for expenses incidental to his or her stay (provided they do not exceed the expenses that the allowance or reimbursement is intended to cover). Furthermore, at 9 FAM 31.31 N8, the manual lists five activities that B-1 business visitors are explicitly allowed to engage in while they are in the United States on B-1 status:
    1. “Engage in commercial transactions, which do not involve gainful employment in the United States (such as a merchant who takes orders for goods manufactured abroad);
    2. Negotiate contracts;
    3. Consult with business associates;
    4. Litigate;
    5. Participate in scientific, educational, professional, or business conventions, or seminars;”
    This list is not necessarily intended to be exhaustive. There are other limited scenarios in which someone may be eligible for a B-1 Visa. If a B-1 applicant appears to be seeking a B-1 Visa for something that is not clearly permitted in regulations, consulate officers are instructed by 9 FAM 41.31 N7 to seek an advisory opinion from a superior. Essentially, such requests will be considered on a case-by-case basis.

    In Matter of Duckett, 19 I&N Dec. 493 (BIA 1987), the Board of Immigration Appeals held that activities that further international commerce and business are permissible under B-1 status. Regulatory memoranda have made clear that B-1 business visitors may not perform work that is part of the United States labor market.1

    Despite all of the regulations on what constitutes permissible activities under B-1 status, it is oftentimes unclear whether a specific activity is permissible. In general, both U.S. employers and B-1 temporary business visitors should exercise extreme caution with regard to avoiding activities that would constitute unauthorized employment. Employers should consult with an experienced immigration attorney if they are unsure a specific relationship with a B-1 business visitor crosses the line to employment, and if so, they should seek an employment-based visa for the B-1 business visitor. B-1 business visitors should also exercise extreme caution in choosing their activities when in the United States under B-1 status, for violating the terms of a B-1 Visa by engaging in unauthorized employment may result both in removal and subsequent difficulties in reentering the United States. When in doubt with work-related questions and B-1 status, always ask an experienced immigration attorney for guidance.

    1 Ira J. Kurzban. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. ALIA Publications, (2014) 877, citing Memo, Williams, Regional Director Western Region, WRINS 70/20 (undated, c. 2000), published on ALIA InfoNet at Doc. No. 03040190