The B-1 nonimmigrant classification (including admissions under the Visa Waiver Program) is appropriate for foreign nationals who are entering the US on a temporary, limited basis to engage in legitimate business activities provided that they are not receiving remuneration from a U.S. source except for reimbursement for expenses while in the US. The Department of State (DOS) regulations define “business” as “conventions, conferences, consultations, and other legitimate activities of a commercial or professional nature” but not local employment or labor for hire. The DOS’ Foreign Affairs Manual (FAM) further specifies activities, such as engaging in commercial transactions, contract negotiations, and litigation.
However, though the regulations exclude productive labor as a general matter, the FAM has long recognized an array of permissible B-1 functions that fall outside the spectrum of pure business activities noted in the rules to those that approach or constitute labor for hire. The DOS has acknowledged that the classification has served as a catch-all for foreign nationals performing short-term activities that do not clearly fall within other nonimmigrant classifications, “but whose admissibility as nonimmigrant seemed within the general intent of Congress in distinguishing immigrants and nonimmigrant.” These include foreign nationals entering the u.s. to serve on the Board of Directors of a US entity, workers coming to install, service, or repair equipment pursuant to a contract of sale, certain foreign domestic workers, and some entertainers and athletes, among others.
Despite the specific functions enumerated in the FAM, the DOS has acknowledged the difficulty of discerning appropriate B-1 activities and the lack of a single overarching definition. Consular officers typically turn to a Board of Immigration Appeals’ (BIA’s) test articulated in Matter of Hira, which specifies that B-1 activities must typically meet the following criteria:
• The foreign national’s activity must involve “intercourse of a commercial nature” but cannot include local employment (i.e., employment activity that is domestic in nature in a position that is generally filled within the US labor market);
• The foreign national must have a clear intent to continue a foreign residence and not to abandon any existing domicile;
• The foreign national’s salary must come from abroad;
• The principal place of business and actual place of eventual accrual of profits, at least predominantly, must remain in a foreign country; and
• The foreign national’s stay in the US must be temporary, although the business activity itself need not be.
In various decisions, the BIA has held that a foreign national need not be considered a “businessman” to qualify as a Business Visitor. If the function he performs is a necessary incident to International Trade or Commerce in certain consulting functions, can be considered as appropriate B-1 activities. For example, in one case, an engineer of the company coming to the US to gather information and requirements under a client contract for his foreign employer’s Cement Manufacturing Consulting Services was considered an appropriate B-1 activity. Many such decisions have held that B-1 visa was appropriate for a foreign national possessing specialized knowledge essential to a project involving installation or servicing of machinery.
However, use of the B-1 in lieu of H-1B visa has come under increasing scrutiny at US Consulates and ports of entry when there are high levels of unemployment. Recently, many government officials believe that there are instances of visa fraud in B-1 visas and fraudulent use of the B-1 visa.
The following recommendations and guidance can be made to the organizations in the current environment for the use of B-1 visas:
Overseas employment and source of salary:
• The employee must remain on overseas payroll throughout the US