Immigration Considerations for Business Travel to United States


Immigration Considerations for Business Travel to United States

Wednesday, 18 April, 2012

A foreign national may be eligible for a B-1 business visitor visa to engage in business activities in the United States, which include legitimate activities of a commercial or professional nature but exclude hands-on work, labor for hire, and local employment. U.S immigration laws do not focus solely on the source of a business visitor's remuneration but also consider the activities to be undertaken in the United States, and employment is understood to involve service or labor performed in the United States for wages or other remuneration.1

Business visitors may meet and consult with business associates; engage in commercial transactions; negotiate contracts; litigate; attend scientific, educational, professional or business conferences; and undertake independent research.2 Other specific activities may also be permissible, as indicated at http://www.state.govidocuments/organization/87206.pdf. In addition, Canadian and Mexican citizens may be admitted to the United States pursuant to the North American Free Trade Agreement (NAFTA) to conduct additional types of business activities on behalf of a Canadian or Mexican entity.3
Under certain circumstances, an individual may enter the United States on a B-1 visa to undertake activities that would normally require an H-1B visa for engaging in professional work or require an H-3 visa for engaging in a training program. In those situations, the business visitor may obtain a B-1 visa designated as "B-1 in lieu of H-1B" or "B-1 in lieu of H-3." Individuals admitted to the United States in either of these categories must remain regularly employed outside the United States, must not receive any remuneration from a U.S. source, and must engage in activities consistent with the H-1B or H-3 visa, as applicable. A U.S. company may, however, cover the cost of travel, accommodations and other incidental expenses incurred in the United States.4
Citizens of certain countries may be exempted from the visa requirement and qualify for the Visa Waiver Program (VWP), as indicated at http://traveLstate.govivisaitemp/without/without 1990.html. The following requirements typically apply:

• The visitor must have received travel authorization from an electronic system;
• The visitor must possess a passport valid for six months beyond his/her anticipated stay in the United States;
• The visitor must travel to the United States on an approved carrier and have a return trip ticket to a destination outside the United States; and
• The visitor must establish his/her intent to remain in the United States for 90 days or less and his/her possession of sufficient funds for the trip. 5

If a B-1 visa is required, an application should be made to the U.S. Consulate with jurisdiction over the visitor's residence. The visitor must establish the following:

• Maintenance of a residence outside the United States which the visitor has no intent of abandoning;
• Anticipated travel duration that is consistent with the planned activities;
• Intent to depart the United States at the end of his/her temporary stay;
• Adequate financial arrangements enabling the visitor to carry out the purpose of the visit and depart from the United States; and
• Permission to enter a foreign country at the end of the temporary stay.6


Procedures vary across the many U.S. consulates; but typically, the visitor must schedule and attend a visa interview. The passport with the issued B-1 visa will usually be available for delivery several days after the appointment. A visitor admitted under the VWP may remain in the United States for up to 90 days,7 and extensions are not permitted.8 Admission based on a B-1 visa is generally for an initial period of up to six months or for a period of time sufficient to cover the planned business activities, whichever is less. Extensions of B-1 status are available, but prolonged business visits may give rise to a presumption that the visitor is engaging in prohibited productive employment. Accompanying dependents of a business visitor may be eligible for VWP status or may apply for B-2 "tourist for pleasure" visas.

1 Legacy INS Memorandum, P. Virtue, "Classification of Visiting University Lecturers" (Aug. 20,1993), 1 INS and DOJ Legal Opinions §93-61 (citing Matter of Tessel, Inc., 17 l&N Dec. 631 (Acting Assoc. Comm'r, Exam. 1981); 8 CFR 274a.1(f)-(h); and U.S. v. Dittman, Case No. 91000027 (OCAHO July 9, 1990).
2 9 FAM 41.31 N8.
3 NAFTA Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057.
4 9 FAM 41.31 N11.
5 INA §217.
6 9 FAM 41.31 N1-N3.
7 INA §217(a)(1).
8 8 CFR 214.1(c)(3)(i).