The Thin “B” (visa) Line: When do Business Visitors Unlawfully Work?  

The line between lawful business visitor activities as permitted with a B-1 visa (or entrance under the ESTA program) and unlawful work is one of the thinner lines in the immigration world.  A range of activity is permitted as a business visitor, much of which sounds like work.

Permitted business visitor activity includes:

• Attending business meetings with colleagues or customers. The line between sales and tending to existing or potential customers is grey. A good general rule to follow is that the relationship with the customer should have been formed overseas and that production/delivery of the service or good that will be provided to the customer will occur abroad. 
• Engaging in preliminary steps related to setting up a new investment or business. These steps include (but are not limited to) locating and acquiring an office, obtaining necessary licenses, forming a business entity, and buying capital equipment. Once the business is ready to “conduct business”, active management of the new investment or business is not permitted. 
• Attending a conference, meeting, trade show or other business event. 
• Lecturing or speaking at an event. 
• Conducting limited market research or other research that benefits a foreign company or organization.  
• Exhibiting goods/services at an international event. 
• Taking orders, negotiating and signing contracts with U.S. customers. Such activity is permitted to finalize a sale and gather necessary information to deliver a product or good from abroad.  
• Servicing or installing machinery or equipment that is produced abroad, if such service and installation is included in the sales contract. Supervision of the installation of the equipment and limited training of U.S. workers to service the equipment is also permitted.  
• Participating in a training session that is required for a position. Training U.S. workers is not allowed.  
• Members of Board of Directors of a U.S. company are allowed to attend board meetings, and to perform functions resulting from board membership. 

Additionally, all of the following conditions must be met related to each of the activities above: 

• Must be employed by a foreign entity. 
• Must not receive any payment or other remuneration from a U.S. source for these activities, besides incidental expenses related to travel, food and lodging. 
• Cannot perform productive labor (still quite unclear) or perform a task that could be performed by a U.S. worker (also unclear). 

Interestingly, the Department of State acknowledges the lack of clarity between B-1 activities and work, and provides this somewhat narrow guidance to the broader problem: 

It can be difficult to distinguish between appropriate B1 business activities, and activities that constitute skilled or unskilled labor in the United States that are not appropriate on B status.  The clearest legal definition comes from the decision of the Board of Immigration Appeals in Matter of Hira, affirmed by the Attorney General.  Hira involved a tailor measuring customers in the United States for suits to be manufactured and shipped from outside the United States.  The decision stated that this was an appropriate B1 activity, because the principal place of business and the actual place of accrual of profits, if any, was in the foreign country.  Most of the following examples of proper B1 relate to the Hira ruling, in that they relate to activities that are incidental to work that will principally be performed outside of the United States. 9 FAM (DOS Foreign Affairs Manual) 402.2-5(A)  (U) Overview of Business Visas. 

The concluding line above does provide a limited framework to analyze whether your activity crosses the line. In other words, are your activities in the U.S. incidental to work that will be principally performed abroad?  

Below are my recommended best practices to avoid crossing the thin “B” line

• Limit yourself to one of the activities explicitly listed above. 
• Never get paid by a U.S. source while here (aside from travel incidentals). Always get paid by your foreign employer. 
• Do not perform work that could be performed by a U.S. worker. These examples provide a little more clarity on this admittedly ambiguous rule:  

• Ex. 1: You are a skilled software engineer coming to the U.S. to meet with members of your U.S. team. You can discuss the work, plan the work, etc. . . , but you should wait to start programming until returning abroad.  
• Ex. 2: You are coming to meet about the construction of a new U.S. plant. You can review plans, advise on progress, identify issues, but you should not actively manage the construction of the new plant. 

• Duration and Frequency of visits: While not discussed in the regulations, the duration of your visit and the frequency of your visit are probably the two most important factors that could cause additional scrutiny and questioning by an immigration officer. In extreme cases, where an officer believes a person is either being untruthful or has engaged in unauthorized work, they may search a person’s cell phone, computer and luggage for proof of any immigration violation. These full searches, though still rare, are occurring with increasing frequency and based on less suspicion than in the past. (Here is a longer discussion about searches of your property at airports). Legally, there is no limit on how much time a person can spend in the U.S. as a business visitor; however, I believe that once a person has spent the majority of their time in the U.S. during any 6-month span, they are likely to receive increased scrutiny. At the same time, some individuals receive scrutiny much sooner based on the facts of their case, while others have spent much longer periods of time in the U.S. as business visitors with no issues. 

This framework leaves unanswered a number of common situations, such as: 

• Can a foreign independent contractor, who is not employed by any foreign company, but rather paid directly by the U.S. company, come to the U.S. as a business visitor? My answer: No, because the contractor automatically violates the rule against no U.S. remuneration. Only if the contractor is employed by a foreign company can they reasonably come to the U.S. on B-1 status. 
• Can you both participate in and lead a training session? Unfortunately, B-1 activity does not allow you to conduct or lead trainings.  
• If you are here for a period of time that allows for normal work functions between meetings, are you allowed to perform these functions? For executives and managers, this line is particularly easy to cross. I would like to think that CBP officers would use their judgement and discretion in this situation and not have a problem with performing some of your job duties between meetings or other legitimate business visitor activities. However, to be safe, I recommend avoiding normal job functions until returning abroad and instead focusing on work related to the legitimate business visitor activity, such as meeting preparations.    

Photo Credit: stevesorensenubs Flickr via Compfight cc