Several years ago, I was asked to help a Japanese corporate client with a thorny problem. They were beginning to ramp up their cooperation with US technology companies, and wanted to post an employee in Silicon Valley for a year, with regular trips back to Japan. A local travel agency put together an application for a B-1 business visitor visa. Much to their dismay, the application was rejected, thus making the Japanese employee forever ineligible to use the Visa Waiver Program (VWP).
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There is not always a clear line between what a person can and cannot do with business visitor status, either through a B visa or through the VWP. The “textbook” case on this topic is Matter of Hira, a Board of Immigration Appeals decision from 1966, which allowed business visitor status for an Indian tailor resident in Hong Kong who visited the United States to take orders and measurements from customers for clothing manufactured in Hong Kong. Matter of Hira established the following principles:
- Visitors’ residence, domicile, and principal place of business must remain outside the United States.
- Visitors are not allowed to perform skilled or unskilled “labor” while in the United States. This specifically means that the “actual place of eventual accrual of profits” must be outside the United States. Thus manufacturing or providing paid services in the United States would not be allowed under business visitor status.
- There is no requirement for business visitors to be “considered as ‘businessmen’ or even skilled.”
Permitted Activities
The Foreign Affairs Manual, which guides US consular officials on visa decisions, lists the following as categorically permitted activities for business visitors:
- Engaging in commercial transactions which do not involve gainful employment in the United States (such as a merchant who takes orders for goods manufactured abroad).
- Negotiating contracts.
- Consulting with business associates.
- Litigation.
- Participating in scientific, educational, professional, or business conventions, conferences, or seminars.
- Undertaking independent research.
- A member of the board of directors of a U.S. corporation seeking to enter the United States to attend a meeting of the board or to perform other functions resulting from membership on the board. (However, “actively participating in the management of the business while in the United States in B status” is prohibited.)
Business visitor status is also allowed, in limited and defined cases, for:
- Professional athletes.
- Offshore vessel/rig workers.
- Personal employees and domestic workers.
- Crew members of aircraft and yachts.
- Medical clerks.
- Artists.
- Musicians intending to record in a US studio (performance requires a different type of visa).
“Hands-On Work”
Due to the restrictions on performing “labor,” business visitors who will perform “hands-on work” of a technical nature must be especially cautious about violating visitor status.
For example, due to concerns about potentially displacing American construction workers from jobs, a business visitor who will visit a construction work site should be prepared to explain that they will not perform any hands-on construction work, but will only observe the site, have discussions with local workers, and conduct other “hands-off” activities.
A business visitor can perform hands-on work on machinery or equipment only if the work is under warranty and the machinery or equipment was purchased from a company located outside the US.
Immigrant Intent
A visitor can be denied a visa or entry if they are determined to have “immigrant intent.” This most commonly happens in the following cases:
- The visitor has a pending visa petition in the US. Visa petitions can take months to process; some immigrant visa petitions take many years. It is permissible for a petitioner to visit the US while they are waiting for an immigrant or non-immigrant visa, but the purpose of their visit will be more closely scrutinized, especially if they are close to receiving an immigrant visa (in which case they may only be allowed to visit the US in case of an emergency, and may otherwise be directed to wait for their immigrant visa).
- The visitor has family members who are US citizens or residents. In this case, US authorities may assume that the visitor will overstay unless the purpose of the trip and the visitor’s ties to their home country are adequately explained.
Important Differences between VWP and B-1/B-2 Visas
In some cases, visitors from VWP eligible countries may find it advantageous to apply for a B-1/B-2 visa:
- VWP stays are limited to 90 days. Longer stays are allowed on a B-1/B-2 visa as long as the consular officials are convinced that you are engaging in permitted activity for that duration.
- The legality of some types of work is clearer on a B-1/B-2 visa than on VWP. This is particularly true for personal employees, aircrew, and evangelical ministers, for which there is no clear official guidance that they can work in the US through VWP.
- VWP is not available to individuals with certain criminal or immigration history, such as overstays, visa refusals, or travel to certain sensitive countries. In addition, some individuals who are eligible for VWP cannot obtain ESTA clearance due to specific issues in their personal history. All such individuals must obtain a visa in order to visit the US.
- VWP users are generally not allowed to adjust their status once in the US, except as the spouse, parent, or child of a US citizen (for details on adjustment based on marriage, see this article). If a VWP visitor wishes to remain in the US legally for any other reason, they will need to leave the US and obtain a visa overseas. B-1/B-2 holders are not subject to this limitation.
- VWP users have limited rights to contest deportation. The only way for a VWP user to contest deportation is to claim asylum. A B-1/B-2 visa holder, on the other hand, has the right to appeal their deportation to an immigration judge.
- Certain British passport holders cannot use VWP. Only British citizens with the unrestricted right of permanent abode in England, Scotland, Wales, Northern Ireland, the Channel Islands, and the Isle of Man are eligible for VWP. This limitation technically excludes many British passport holders from Ireland, Hong Kong, and other jurisdictions outside the UK proper.