The General Rule
The Immigration and Nationality Act ("INA") defines a visitor for business as an alien having a residence in a foreign country which he has no intention of abandoning who is visiting the United States temporarily for business. Based on this definition, a visitor for business must establish that he or she will:
- Maintain a foreign residence that has not been abandoned (i.e. sold, rented to someone else, etc.);
- Enter the United States for a specific finite period of time; and
- Seek admission solely to engage in legitimate activities relating to business;
The term "business" is not defined in the INA or its regulations. However, the Department of State ("DOS") has defined the term in its Foreign Affairs Manual ("FAM"). The FAM defines "business" as conventions, conferences, consultations and other legitimate activities of a commercial or professional nature but does not involve local employment or labor for hire. The FAM
also says that B-1 status is clearly available to an alien who is entering the United States to:
- Engage in commercial transactions that do not involve gainful employment in the U.S. (such as a merchant who takes orders for goods manufactured abroad);
- Negotiate contracts;
- Consult with business associates;
- Participate in scientific, educational, professional or business conventions, conferences or seminars; or
- Undertake independent research.
A distinction must be made between ordinary work for hire and work that is incidental to international commerce. In order for an activity to be permitted, it must relate to an international business activity. The general criteria for assessing proposed activities have therefore been held to be as follows:
- A commercial activity;
- A clear intent by the alien to continue a foreign residence;
- The principal place of business and the place where profits will
primarily accrue are in a foreign country;
- The alien's salary comes from outside the United States;
- The alien's stay in the United States is temporary, although the
business activity need not be; and
- The alien is a business person or, if employed, is pursuing an activity
that is a necessary incident of international trade or commerce.
Specifically Permitted Activities
Specifically Permitted Activities Listed in the IFM, OIs, FAM and the NAFTA
United States Citizenship and Immigration Services ("USCIS") and the DOS have each
published lists of activities which are acceptable for B-1 purposes. If the proposed activity is specifically mentioned on one of these lists, it is relatively easy to argue eligibility for B-1 status. Conversely, if the proposed activity is not specifically mentioned on one of the lists, it is very difficult to argue eligibility for B-1 status.
The current USCIS list appears in the Inspector's Field Handbook ("IFM"). The relevant section is reproduced here. The IFM replaces the former Immigration and Naturalization Service ("Legacy INS") list contained in the Legacy INS Operations Instructions ("OIs"). Although no longer effective, for the purposes of comparison, the list contained in the INS Operations Instructions is still available here. The current DOS list contained in the FAM appears here.
The NAFTA has broadened the scope of permissible B-1 activities for Canadian citizens (but not landed immigrants of Canada). NAFTA's immigration-related provisions are cumulative and are available in addition to the normal B-1 provisions discussed above. As in the case of the INS and DOS lists, if a proposed activity is specifically permitted as a B-1 activity under NAFTA, it will be relatively easy to argue eligibility. For a complete list of B-1 activities specifically permitted under NAFTA click here.
The FY1999 Omnibus Appropriations Bill (H.R. 4328), which was signed into law on October 21, 1998, specifically states that any alien admitted in visitor status may accept an honorarium payment and associated incidental expenses for a usual academic activity or activities (lasting no longer than 9 days at any single institution), if such payment is offered by:
- An institution of higher education or a related or affiliated nonprofit entity;
- A non-profit research organization or a Governmental research organization
and is made for services conducted for the benefit of that institution or entity and if the alien has not accepted such payment or expenses from more than 5 institutions or organizations in the previous 6-month period. This provision applies to activities occurring on or after October 21, 1998.
The most controversial specifically permitted activities have related to the use of B-1 in lieu of H-1 and the use of B-1 for after-sales service contracts. Each of these examples are discussed below.
B-1 in Lieu of H-1
Under the old INS Operations Instructions ("OI"), an alien who qualified for H-1 status could enter under B-1 where the alien was coming to the United States to perform H-1 services for which the alien would receive no salary, other than an expense allowance or other reimbursement for expenses incidental to the alien's temporary stay. The foreign employer required an office overseas, the employee had to be customarily employed by the foreign employer, the foreign employer had to pay the employee's salary, and the source of the employee's salary had to be overseas.
In 1993, Legacy INS proposed to eliminate the section of the OI's allowing "B-1 in lieu of H-1" where the alien is coming to the United States to perform H-1 services for which the alien will receive no salary, other than an expense allowance or other reimbursement for expenses incidental to the alien's temporary stay .
The proposed Legacy INS regulations were never finalized. However, the IFM, which supersedes the OIs, no longer contains a provision for "B-1 in lieu of H-1". One wonders whether this omission was deliberately intended to eliminate the "B-1 in lieu of H-1" activity.
In 1993, the DOS also proposed to eliminate the equivalent provision of the FAM. However, it also took an extended view of "business" and suggested that aliens who were not employed by an organization in the United States but who are working for and drawing salary from a foreign firm were still eligible under ordinary B-1 standards, regardless of whether or not they would also qualify for H-1. The proposed DOS regulations were never finalized and "B-1 in lieu of H-1" still appears in the FAM.
Under the OIs, an alien coming to the United States to install, service or repair commercial or industrial equipment or machinery purchased from a company outside the United States or to train U.S. workers to perform such services could enter the United States under B-1, where the contract of sale specifically required the seller to provide such services or training, the alien possessed specialized knowledge essential to the seller's contractual obligation and the alien received no remuneration from a U.S. source. The OIs also required that such a trip take place within the first year following the purchase (Canadians entering in B-1 status pursuant to Appendix 1603.A.1 of NAFTA could still enter for the life of the warranty or service agreement.)
In 1993, the DOS published proposed regulations, which would have restricted the use of B-1 for after-sales service. Under the proposed DOS regulations, it would still be possible for a B-1 worker to install, service, or repair commercial or industrial equipment or machinery, or software products purchased from a company outside the United States, or train U.S. workers to perform such services. However, the following requirements would apply:
- The contract of sale must require such services or training;
- The alien must have knowledge essential to the seller's contractual obligation;
- The purchase contract is chiefly for the purpose of a "physical product" and not for service activities;
- The seller is regularly in a commercial business;
- There is no direct correlation between the alien's salary and the U.S. company's payment for the purchase of services;
- The alien will receive no remuneration from a U.S. source; and
- The seller will control all the alien's day-to-day work activities and work locations .
The DOS proposed regulations were never finalized.
The Legacy INS proposed regulations were less restrictive. Legacy INS would require
"ultimate control" by the foreign company over the alien's employment, including hours and locations, but not day-to-day activities . The foreign employer would have the right to decide the acceptability of the alien as well as salary promotion and other employment issues . Title to the alien's proprietary work product would have to be vested in the alien or the alien's foreign principal . Also the INS would not appear to preclude trade in services. The INS proposed regulations were never finalized.
The IFM now contains a provision similar to the old OI but the requirement that travel take place within the first year following the purchase has been omitted. The FAM provision (which never imposed a one-year limit) continues to be valid.
The Presumption of Immigrant Intent
The B-1 category is subject to a presumption of immigrant intent. In other words, it is presumed that a B-1 applicant intends to remain permanently in the United States. In order to overcome this presumption, the B-1 applicant should be prepared to:
- show that he or she has adequate funds to avoid unlawful employment while in the United States;
- offer specific and realistic plans for the contemplated visit, not just vague and uncertain intentions;
- show that the proposed period of time for the visit is consistent with its stated purpose and establish with reasonable certainty that departure from the U.S. will take place upon completion of the temporary visit;
- not express the proposed period of stay in terms of remaining for the maximum allowable period; and
- document sufficient ties to his or her home country, such as an unabandoned residence, employment, business or financial connections, close family ties, or other commitments that indicate a strong inducement to return.