B-1 Not Appropriate for Construction Work
Posted Jul 06, 2001

On May 24, 2001, the Department of State (DOS) issued a cable message clarifying that the B-1 visa is not to be used for building and construction work. In previous MurthyBulletin articles, we have written about the various uses of the B-1 visa for business visitors. To see a detailed description of the allowable scope of activities under the B-1 category, kindly refer to our article entitled What Activities are Appropriate for B-1s? from the September 1, 2000 edition of the MurthyBulletin. General Information on the B-1 (visitor for business) and B-2 (visitor for pleasure) is available in our September 15, 2000 article entitled, Overview: B-1/2 Visas for Temporary Visitors for Business or Pleasure.

In the cable, DOS reminds consulates and the public that B-1 business activities do not include "local employment or labor for hire." The Foreign Affairs Manual (FAM), which is the DOS guidebook on the regulations and requirements for visa issuance, explains that building and construction work is considered to be local employment / labor for hire if it involves actual hands-on work. Only if the work involves supervising or training others, might it be allowable under the B-1. Also, if a person is coming to the U.S. for installation, service or repair of equipment, as required by the contract for sale of the equipment, such activities may be allowed under the B-1 provided certain other conditions are met. But again, such "after-sales service" cannot include building or construction work.

Examples given in the cable of building and construction work include masonry, roofing, carpentry, and steelwork. Even if a B-1 applicant possesses a specialized skill, such as building ornamental structures for religious temples, the B-1 is not appropriate unless the person will be supervising others, rather than actually performing the work her/himself. However, there may be another visa status for such a person. For example, if the person has a skill not likely to be found in the U.S. and is coming for a single project or a limited time, the H2B category may fit the situation. A person who is renowned for his/her talent and artistry may even be able to qualify as an O1 extraordinary artist.

The cable also encourages consulates to request advisory opinions in cases where the person appears to qualify as a B-1 but the activities may include construction work. Of course if the person is determined by the consular officer not to qualify for the B-1, then the consular officer may deny the visa without obtaining an advisory opinion.