What Activities are Appropriate for B-1s?
Posted Sep 01, 2000

We at the Law Office of Sheela Murthy are often asked what activities are appropriate for a person in B-1 status. Some companies and individuals are under the misguided impression that a foreign national can perform work in the U.S. for short periods of time on a B-1, as long as he or she is paid only from a foreign source. We take this opportunity to dispel this myth, and to share with you certain issues that are pertinent to B-1 status.

The B-1 business visitor visa can be very useful for a businessperson who needs to travel to the U.S. on short notice to attend meetings and the like. Some examples of allowable activities under B-1 status include: commercial transactions; contract negotiations; meetings and consultations with business associates; litigation; participation in company training or in professional or business conventions, conferences or seminars; research; visits to branch offices of one's company; and sales calls.

Except for certain rare instances mentioned below, however, B-1 visa holders cannot take up work in the U.S. The general rule is that the activities of the B-1 person in the U.S. must be for the benefit of the foreign employer. As the State Department's Foreign Affairs Manual (FAM) puts it, "Engaging in business contemplated for B-1 visa classification generally entails business activities other than the performance of skilled or unskilled labor."

Certain B-1 visitors may perform work here under certain narrow circumstances. Some examples are missionaries, volunteer workers for non-profit entities, certain domestic servants whose employers are not U.S. residents, and certain airline employees, among a few others. B-1s can also be issued to people coming to install or repair equipment in connection with a contract to sell the equipment, where installation, training and so forth are specifically mentioned in the contract as being part of the terms of the sale. The usual situation of this type is where a U.S. subsidiary is selling goods manufactured by its parent company abroad, and that foreign company sends a technical expert to oversee installation. In contrast, if a company in the U.S. has a contract that does not involve the sale of merchandise but concerns the provision of services, a B-1 holder cannot be assigned to provide such services. Rather than being incidental to a sale, those services are the actual item that is being sold. The activities of the B-1 visitor would be mainly or completely for the benefit of the U.S. company.

Historically, there has also been a use of the B-1 that is sometimes called "B-1 in lieu of H-1." That situation commonly involved a person who appeared otherwise eligible for an H-1, working in a short-term professional assignment when the salary was paid from a non-U.S. source. Keep in mind that the expense allowance, or reimbursement for hotels and food, can be paid in the U.S. for those in B-1 status. While some consulates around the world still seem to issue the B-1 in this type of situation, the "B-1 in lieu of H-1" is considered somewhat suspect by most consulates; today, most would not issue the B-1 visa in these circumstances. Moreover, the INS, which is the agency that people have to deal with when they arrive in the U.S., does not approve of the issuance of the B-1 where the foreign national is working and benefiting the U.S. employer directly. Consequently, there could be problems in gaining entry into the U.S. if the INS inspector questions the purpose of the trip. It could also be difficult to obtain an extension of the B1 status from within the U.S. should that become necessary.

It is the INS's position that a person cannot actually provide services in the U.S. unless he or she has some type of status, such as the H1B, L-1, O-1, etc., that actually authorizes work. (Again, those rare exceptions alluded to above still apply, and INS recognizes that those persons can work in the U.S.) If a person is coming to the U.S. to perform work for the direct benefit of the U.S. employer -- developing software, for example -- then the foreign national is required to obtain a status, such as one of the above, which allows him or her to work. The fact that the project is merely for six months or a year no longer entitles the person to work in the U.S. in B-1 status.

There have been recent indications that INS inspectors are focusing more often on the scope of the B-1. For example, the U.S. Embassy at Tokyo and the U.S. Consulate General at Osaka-Kobe, Japan have noted an increase in the number of Japanese business visitors turned away at U.S. ports of entry. Officials at these posts have strongly encouraged attorneys to advise their clients as to the proper use of the B-1.

B-1 visa holders should carry with them the documentation (such as a company letter) that they used to obtain the visa, in case they are asked at the port of entry about the purpose of their trip.