What is a B-1 Business Visitor

In today’s world where there is increased scrutiny at airports and ports of entry across the United States, one of the issues employers and their international business travelers may face is convincing U.S. CBP officers that they are B-1 Business Visitors in the legal sense of the term.  It can be difficult for employers or their employees to discern between what activities are allowed as a business visitor and what activities rise to the level of requiring a work visa.  This article provides guidance on where the line is so that employers and international business travelers can arrive in the U.S. confident in their ability to be admitted to the U.S.

Make no mistake, every time you enter the U.S. and stand before a U.S. CBP officer, his or her decision to admit you to the U.S. is an adjudication that can go either way.  Therefore, as a threshold consideration, the benefit of a B-1 visitor’s services must inure to an employer whose principal place of business is outside of the United States.  Any compensation must be paid to the foreign employer, and each B-1 admission must be temporary in nature.  Moreover, the B-1 visitor must have an unequivocal intent to return to his or her foreign domicile and at no time should an employer or your employee misrepresent their intentions to the officer about what they are coming here to do.  Misrepresenting one’s true intentions to a CBP officer at port of entry could lead to a charge of immigration fraud and could make the employee permanently excludable from the United States.

What Can You Do As A B-1 Business Visitor?

With this in mind, what can, and can’t you do as a B-1 Business Visitor in the U.S.?  Here are a few questions and answers on this point:

• I need to perform commercial or industrial services. Is this permissible? As long as you are not receiving compensation from a U.S. employer or business and as long as it does not involve gainful employment in the U.S. it is generally permissible. For instance, you may negotiate contracts, consult with business associates, including attending meetings of the Board of Directors of a U.S. corporation, litigate, participate in scientific, educational, professional, or business conventions, conferences, or seminars, and undertake independent research.
• I need to come to the U.S. to install, service, or repair equipment/machinery purchased from a foreign company. I also need to train U.S. workers to perform these services. Is this permissible? If the contract of sale specifically requires the seller to provide these services or training, and you possess specialized knowledge essential to the seller’s contractual obligation to perform the services or training it may be permissible for you to perform these services. In addition, the machinery or equipment must have been manufactured at a location outside of the United States and you may not receive compensation from a U.S. source.
• I am a professional athlete. May I receive compensation? Maybe. An individual may be able to enter for a particular event and receive prize money for participation in tournaments or sporting events. However, it is not permissible to, in effect, live and work in the United States, including where prize money is the primary source of income.
• May I still come to the U.S. if I am an athlete or a player on a foreign-based sports team, to compete with another sports team? In general, you and your team’s principal place of business or activity must be located in a foreign country, your team’s income and the team player’s salary must be primarily earned in a foreign country, and your team is a member of an international sports league, or the sporting activities have an international aspect.
• I am a member of an amateur sports team. May I participate in try-outs for a professional U.S. sports team during their regular season or playoffs? Yes, but the team you try out for may only provide the direct expenses for the try-outs, such as round-trip fare, hotel room, and meals. However, you may not remain in the United States to live and work for that U.S. sports team.
• I am a professional entertainer. What type of activities may I participate in with a B visitor classification? You may (1) participate in a cultural exchange program performed before a nonpaying audience and funded by your country; or (2) participate in a competition for which there is no compensation other than expenses, or in certain limited instances, prize (monetary or otherwise).
• I am seeking investments in the U.S. Am I eligible to do this as a B-1 visa holder? Yes, as long as you are not performing productive labor or actively participating in the management of a business. You may only engage in these activities under an E-2 visa holder. But you may engage in activities such as consult with business associates, including attending meetings of the Board of Directors of a U.S. corporation, litigate, participate in scientific, educational, professional, or business conventions, conferences, or seminars, and undertake independent research.
• May I perform services on behalf of a foreign-based employer as a jockey, sulky driver, trainer, or groom, while working for another employer? No.
• May I be admitted to the United States to start or be employed in a new branch, subsidiary, or affiliate of my foreign employer under a B visa? No, but you may acquire an L-1 visa for such activities.
• May I just observe a business operation under a B visa? You may only observe how the business or other professional activities are conducted.
• Are there any restrictions to work in connection with exhibits at international fairs or exhibitions? In certain circumstances, where you are an employee of a foreign exhibitor whose employment responsibilities are primarily abroad, this may be permissible.
• May I volunteer with a religious or non-profit charitable organization? You may provide some volunteer services, such as attending meetings, speaking at a conference or assisting with a religious event. However, you may not come to live in the United States or provide labor for a religious or non-profit charitable organization.  In addition, certain types of volunteer services such as construction are not permissible on a B visa.
• I only have a B-2 visa for pleasure or tourism. May I engage in B-1 activities? You may engage in B-2 visa activities while admitted under a B-1 visa. However, you may not engage in business activities while admitted under a B-2 visa.
• I am an outside director of a major American corporation, and the corporation compensates me for my time and travel expenses to attend Board of Director Meetings. May I enter the U.S. as a B-1 visa holder? This is a permissible activity as a B-1 visa holder.

This list is not exclusive but is illustrative of the types of activities one can undertake in the United States.  If you have questions about specific fact patterns or activities, please contact us at Gunn Menefee LLC for any necessary clarifications.