The Many Legitimate Uses Of The B-1 Visa
by Myriam Jaidi
Although the B-1 business visa remains one of the “most ill-defined” visas (as discussed in our reprint of a previous CDMA article, Analyzing the B-1 Business Visa, dated July 5, 2004, below), it has served a critical role in providing flexibility to business travelers and in supporting international commerce. In light of the recent letter from Senator Charles E. Grassley, available here http://1.usa.gov/gE9SWi, to Secretary of State Hilary Clinton and Secretary of Homeland Security Janet Napolitano requesting their review and restriction of the use of the B-1 visa, we have determined that a refresher of the B-1 visa is appropriate.
All of us are painfully aware, especially in these times of deep economic struggle, that our nation’s immigration system is broken and desperately needs to be reformed, as the White House stated, “to meet our 21st century economic and security needs.” White House statement available here, http://1.usa.gov/fFzP8O. Cyrus D. Mehta and Gary Endelman have previously suggested the use of executive discretion as a flexible means to provide solutions to some of the most vexing problems in immigration including the current rules and policies governing priority dates, employment authorization, and deferred action. An installment of their series on this issue is available here, http://bit.ly/cgsHY9.
Flexibility is of crucial importance in the context of our global economy, regardless of whether it is booming or busting. That the government has taken a case-by-case approach to the B-1 has led to some confusion as to the permissible bounds of the category; nevertheless, the approach recognizes the importance of flexibility in granting the B-1 visa (and admission based thereon) in light of the ever-changing global economy. The B-1 can be used for a diverse range of activities not associated with business as well, including professional and amateur sports, domestic employees of US citizens abroad, yachting crews, individuals involved in litigation such as plaintiffs, defendants or expert witnesses, medical students, certain trainees, seminar attendees and so forth. For a sampling of the diverse uses of the B-1, see pages 47 to 50 of the CBP Inspector’s Field Manual, available here, http://bit.ly/g3VNFm.
Senator Grassley stated that his concerns stemmed from a civil law suit brought against a company in which the individual alleged, without distinguishing the many authorized uses of the B-1, see the complaint here http://bit.ly/dV1cv6, that the company was bringing workers to the US in B-1 status in violation of rules meant to protect US workers. The long-standing intent of the US Congress in developing the complex statutes and regulations governing immigration has been the protection of US workers’ from unfair competition. See, e.g., Karnuth et al. v. United States ex rel. Albro, 279 U.S. 231 (1929).
On the other hand, it is important to remember that another crucial aspect of Congressional intent has always been the promotion of international commerce. Back in 1993, during another (but much less severe) economic downturn, the Department of State noted that “it is not appropriate or possible to develop a definitive definition of ‘business’ rather, to further the congressional two-fold intent not to impede international commerce and to protect the U.S. work force from unfair competition, a certain amount of judgment and common sense will have to be exercised on a case-by-case basis.” 58 Fed. Reg. 40026 (July 26, 1993). This comment was made in the context of proposed regulations that, if adopted and implemented, would have meant the end of one version of the B-1 visa, referred to as the “B-1 in lieu of H-1B,” the requirements of which are detailed in the article below. The economy started turning around and perhaps only coincidentally the regulations were never adopted. One can reasonably speculate that the Department of State (DOS) (and the Legacy INS, which had issued similar proposed regulations at 58 Fed. Reg. 58982-58988 (November 5, 1993)), upon reviewing the proposed regulations, determined that they were overly restrictive and could have a chilling effect upon business and investment in the United States. Although the Department of Homeland Security (DHS) did not include a reference to the B-1 in lieu of H-1B in the Customs and Border Protection Inspector’s Manual first issued in 2005, many ports of entry admit individuals on this basis and many US consulates abroad (such as the US consulate in Mumbai, India http://1.usa.gov/et4qyk) provide information about and the criteria required to obtain a B-1 in lieu of H-1B visa.
Although the various permutations of the B-1 visa may not be clearly defined or perfectly matched to all legitimate business purposes, the various forms available play a key role in ensuring that US businesses and foreign investors can access opportunities that benefit the US and its workers. Representative Darrell Issa (R-Calif.), recently acknowledged the impact of US immigration policies on the economy: “there seems little doubt that federal policies and regulations have played a large role in hampering growth.” Read more about the Representative Issa’s statements here, http://bit.ly/eW9C6k. For more detail on the B-1, please read our previously published article below.
July 5, 2004
ANALYZING THE “B-1” BUSINESS VISA
One of the most ill defined visas is the B-1 business visa. While the B-1 cannot be used to engage in employment in the US, it is nonetheless used for a variety of purposes, sometimes not related to business. However, it is particularly useful for people who come to the US to represent a foreign business. This article explores the scope of the B-1 visa.
Definition of “Business”
The Foreign Affairs Manual (FAM), published by the Department of State, further provides that a B-1 visa holder must not receive a salary from a US source, but can be reimbursed for expenses in the US. 9 FAM § 41.31 Note 3.4. The FAM sets forth the following examples of permissible B-1 activities: engaging in commercial transactions, which do not involve gainful employment in the U.S.; negotiating contracts; consulting with business associates, litigating; participating in scientific, educational, professional or business conventions, conferences or seminars; or undertaking independent research. 9 FAM § 41.31 Note 5. The FAM also lists other categories permissible under the B-1 visa such as ministers coming to the US for evangelical purposes or to exchange pulpits, as well as servants accompanying US citizens who are based abroad or non-immigrants entering the US for temporary purposes. 9 FAM § 41.31 Note 6. One relevant provision in the FAM allows an “alien who is a member of the board of directors of a US corporation seeking to enter the US to attend a meeting of the board or to perform other functions resulting from membership of the board.” 9 FAM § 41.31 Note 6.2. Software programmers employed at an overseas entity are granted B-1 visas to analyze the scope of a US project, before working on it at the foreign location. People may also come on a B-1 visa to handle preliminary activities in opening a US business.
Beware of Work for Hire
The “temporary” duration of a business visitor’s sojourn to the US was explored in Matter of Lawrence, 15 I. & N. Dec. 418. The respondents, citizens of Canada, who owned 40 percent of the stock of a US corporation, entered the United States as visitors for business. In that case, the BIA held that the visit of aliens who “did not seek to enter the United States for a reasonably short and relatively definite period of time and were not coming here with any limited goal in mind, but, instead, were entering to manage the day-to-day operations of a United States enterprise,” clearly could not be characterized as “temporary,” and they were not entitled to B-1 business visitor classification.
In Matter of Opferkuch, 17 I. & N. Dec. 158, the BIA held that a salaried “project specialist” who planned to enter the United States three to six times during a period of 18 months to serve as a coordinator liaison between his employer in Canada and a Texas corporation, who never solicited business in the United States, and who had, as his sole purpose, the gathering of pertinent information for a company in which he is not an officer or principal, was able to enter the US on a B-1 visa. The BIA observed that Opferkuch was employed in the United States for less than 8 percent of his working year.
By contrast, in Matter of Neill, 15 I. & N. Dec. 331, the BIA concluded that a principal of a Canadian engineering firm, earning approximately 30 percent of its income from clients located in the United States, who averaged one or more trips a week to the US in connection with his practice, was not engaged in “business” for B-1 visa purposes. The BIA found that his professional activities in the United States went “well beyond functions which can be described as necessary incidents to international trade or commerce.” The BIA further found that he was “regularly performing personal services in the United States independent of any other commercial activity.” Neill spent some of his time soliciting business; but as the BIA observed, spent the bulk of his time devoted to consulting with clients and obtaining necessary information from them. Since the majority of his time in the US was spent in connection with the rendition of professional services as an engineer, the BIA found that Neill was in effect extending his professional engineering practice to the United States.
The BIA in Matter of Opferkuch, supra, found the facts in that case distinguishable from the facts in Matter of Neill, supra. Opferkuch’s sole purpose in coming to the US was to gather pertinent information about the company in which he was not an officer or principal. On the other hand, Neill was the principal of a foreign company who actively participated in negotiation and solicitation of business in the US while ostensibly here for consultation purposes only.2
A memorandum issued by the Western Regional Office3 is also helpful. The memo instructs immigration personnel to take into account the following questions in determining permissible business visitor activities:
1. Will the individual be compensated (ie. beyond reimbursement for expenses or per diem) from a US source?
2. Will the individual, even if uncompensated, perform services for which a US worker would have to be hired or are the services inherently part of the US labor market?
3. Are the services primarily benefiting the US entity as local work or hire (as contrasted with benefiting the alien him/herself or the foreign employer in furtherance of international trade)?
A “yes” to any of the three above could disqualify the alien from B-1 or VWP admission.
B-1 Visa In Lieu Of An H-1B Visa
For admission pursuant to B-1 in lieu of H-1B status, the foreign national must demonstrate eligibility for H-1B status, although filing of an actual petition is not required. Pursuant to INA Section 214(i)(1), an alien must be coming to the US to take up a “specialty occupation” to qualify for an H-1B visa, which requires the “attainment of a bachelor’s or higher degree in the specific specialty (or equivalent) as a minimum for entry into the occupation.” When an alien lacks a bachelor’s degree for H-1B eligibility, three years of work experience may equal one year of college. 8 CFR Section 214.2(h)(4)(iii)(D). Since a college program in the United States is four years, an alien with no degree must demonstrate upwards of 12 years of progressively responsible experience.
Notwithstanding the analysis set forth above, immigration inspectors and consular officers have wide discretion in determining whether an alien is eligible for B-1 classification or not. Even if an alien is granted a B-1 visa overseas, there is always the possibility that an immigration official at a US port of entry may refuse entry or find him/her inadmissible.5
1 INA §101(a)(15)(B), and INA § 214(b).
2 See criticism of Matter of Neill, supra, in Gordon, Mailman and Yale-Loehr, Immigration Law and Procedure, Matthew Bender, §14.05(2)(c) (“It would seem to be inherently difficult to separate the development of information from the rendering of advice and the solicitation of business in the course of the typical consultation. Moreover, it is difficult to understand the Board’s emphasis on the alien as a principle and his solicitation of business as if these factors were inimical to the B-1 status.”)
3 Reproduced and discussed in Martin Lawler, Professionals: A Matter of Degree, 4th Ed., Chapter 9, American Immigration Lawyers Association.
4 Also listed in OI 214.2b (2)(1).
5 Section 235 of the INA authorizes such an officer to permit an alien found inadmissible to either withdraw his/her application for admission and depart immediately from the US or order the alien removed.
This article was originally published on (www.cyrusmehta.com) on April 24, 2011.
Myriam Jaidi is an Associate with Cyrus D. Mehta & Associates, PLLC where she represents clients on a full range of employment- and family-based immigration matters. Ms. Jaidi worked as a public defender with The Legal Aid Society in New York City from 2002 to 2004. She received her J.D. from the University of Michigan Law School where she served as Editor-in-Chief of theMichigan Journal of Race & Lawand was awarded the Dores McCree Award for Service to the Law School Community. She received her M.A. from Stanford and her B.A.cum laudefrom Harvard University.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.