By Yingfei Zhou, Esq.
The B-1 business visitor visa allows foreign businesspersons to be admitted into the U.S. so that they may engage in certain temporary business activities. B-1 business visitors are not required to obtain work authorization prior to being admitted because they are not entering the U.S. labor market and they are admitted to the U.S. without Numerical limit.
Who qualifies as a business visitor?
In determining whether a foreign national qualifies as a business visitor, two cases are frequently cited: Matter of Hira and Matter of Neill.
Matter of Hira involved a foreign national who traveled to the U.S. on behalf of his employer, a Hong Kong manufacturer of custom-made men’s clothing. The foreign national accepted payment for the order, took measurements of customers, and sent back the order with the purchase price to the employer for handling. The foreign national received reimbursement for expenses but no remuneration in the U.S., and he demonstrated an intent to return to Hong Kong at the end of his authorized stay. The foreign national was found to be eligible for business visitor classification.
To the contrary, Matter of Neill, involved a professional engineer for a Canadian firm who solicited business in the U.S. and regularly rendered consulting services to U.S. customers. The Immigration found that the foreign national’s activities constituted professional services that went beyond activities incidental to international trade and determined that the foreign national was not eligible for entry as a business visitor.
The above two cases identify five factors that must be considered in determining whether a foreign national qualifies for business visitor status:
- The foreign national’s activity must involve a commercial character
- The foreign national must have a clear intent to continue a foreign residence and not abandon any existing domicile
- The foreign national’s salary must come from abroad
- The principal place of business and the actual place of eventual accrual of profits must remain in a foreign country
- The foreign national’s stay in the U.S. must be temporary
To satisfy this requirement, applicants may submit following evidence to demonstrate your intent to remain for a limited time:
- Ticketed return travel, evidence of other meetings or time-sensitive activities you need to engage in after returning.
- Evidence of property ownership in your home country, ties to family (such as a spouse and children), and evidence of employment in your home country.
- Evidence of participation in an incubator or accelerator program that is for a limited duration.
Sufficient Funds to Cover Your Stay
Applicants need to demonstrate that you have sufficient funds to cover your stay in the United States without working. Those may include documentation regarding credit limits, bank accounts, cash on hand, or other means to pay for your expenses, and/or evidence that expenses have already been paid, such as ticketed (domestic) air travel.
Sufficient Ties Abroad
Evidence you may submit to demonstrate social and economic ties abroad may include:
- Foreign bank accounts
- Mortgage or rental agreement documenting residence abroad
- Foreign property owned
- Family members outside the United States
- Employment outside the United States
- Contractual or other legal commitments outside the United States
Cannot Draw Any Salary from a United States Entity
It is permissible to conduct business activities on behalf of a foreign employer, but no salary may come from a U.S. source. In some cases, however, you may receive reimbursement from a U.S. source for reasonable incidental expenses incurred while in the United States.
To satisfy this requirement, you may submit evidence in the form of an oral declaration or an employer letter indicating that the primary source of remuneration for the proposed business activity comes from abroad and that the business visitor’s principal place of business and actual accrual of profits remains outside the U.S.
What is counted as a business activity?
Applicants may be eligible for a B-1 visa if they will be participating in business activities of a commercial or professional nature in the U.S., including, but not limited to:
- Consulting with business associates
- Traveling for a scientific, educational, professional or business convention, or a conference on specific dates
- Settling an estate
- Negotiating a contract
- Participating in short-term training
- Transiting through the United States: certain persons may transit the United States with a B-1 visa
- Deadheading: certain air crewmen may enter the United States as deadhead crew with a B-1 visa
A salesperson can enter the U.S. to sell, negotiate, and enter into contracts for the sale of products manufactured outside of the U.S. It is not permissible for a foreign salesperson to enter the U.S. in order to sell a U.S. manufactured product to a U.S. customer. The situation can become blurred when the foreign parent company establishes a distribution or manufacturing facility in the U.S. The salesperson may be required to prove that he or she is not rendering sales activities on behalf of the U.S. Affiliated company or with respect to products manufactured in the U.S., even if the sales contract and related income accrue to the foreign parent company.
After Sales Services
In international trade, sellers are often required to perform certain after-sales services that are incidental to the sale. Foreign workers are allowed to enter the U.S. to install, assemble, repair, and maintain equipment in the U.S. pursuant to the sales contract and any applicable warranty. The workers can bring their own tools into the U.S. to perform the services. However, there must be a skill coupled with specific knowledge of the product that is not easily obtained and not generally known in the marketplace, and the product has to be manufactured outside the U.S.
Establishing Business Operations in the U.S.
Business visitor entries are often a necessary part of the creation or acquisition of a U.S. business. They may enter the U.S. to meet with attorneys or other advisors, negotiate leases or other contracts, interview and hire personnel, and the like. Problem is more likely to arise after the U.S. business is operational and foreign nationals seek entry into the U.S. to meet with U.S. management or staff, or to interact with the activities of the U.S. business.
Active participation in the management of the day-to-day activities of the U.S. company is deemed employment that requires work authorization. The entering business visitor can benefit from a letter from the foreign company, explain that the individual is entering the U.S. on behalf of the foreign company, not the U.S. company, and in furtherance of a legitimate B-1 activity in connection with international trade.
Ordinarily B-1 business visitors who are not Canadian citizens must have a valid B-1 visa to be eligible for admission and must present a valid passport. Applications will be reviewed and decisions will be made by the Immigration officers at their discretion upon presentation of proof of citizenship, documentation demonstrating that the visitor will engage in an appropriate business activity, and evidence that the proposed activity is international in scope and that the business person does not seek to enter the U.S. labor market. Again, while not required, it may be useful for the applicant to carry a letter from his or her employer stating the circumstances of the business trip in convincing the officer that B-1 status is appropriate.
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