To B or Not to B: When B Non-immigrant Visas Are Appropriate
Many foreign nationals enter the United States with B non-immigrant visas. The B-2 visa may be used by tourists visiting the United States for vacation or to visit friends and family. The B-1 visa may be used by business visitors who are entering the United States to engage in business activities.
A foreign national who enters the United States with a B visa and engages in impermissible activities may face severe penalties including: fraud allegations; removal (deportation) proceedings; accumulating unlawful presence; and bars from returning to the U.S. Thus, employers should not encourage foreign personnel to enter the U.S. with a B visa to work -- even for a very short period of time.
B-1 business visitors may come to the U.S. to engage in activities of a commercial or professional nature, related to their foreign employment or business for which they are not paid from U.S. sources, other than incidental living or traveling expenses. A B-1 business visitor may not perform services for a U.S. entity which could be considered to be employment.
The Immigration and Nationality Act ("INA") defines "visitor" as: An alien (other than one coming for the purpose of study or of performing skilled or unskilled labor or as a representative of foreign press, radio, film, or other foreign information media coming to engage in such vocation) having a residence in a foreign country which he has no intention of abandoning and who is visiting the U.S. temporarily for business or pleasure.
A business visitor is not authorized for employment in the U.S. It is important to keep in mind the distinction between employment and doing business so that a foreign national does not engage in unauthorized employment.
Legitimate B-1 Activities
The Department of State's Foreign Affairs Manual ("FAM"), states that B-1 visitors may engage in the following activities: Engage in commercial transactions which do not involve gainful employment in the U.S.; negotiate contracts; consult with business associates; litigate; participate in scientific, educational, professional or business conventions or conferences; and undertake independent research.
Foreign nationals seeking entry into the U.S. "on business" should have the following attributes:
- The foreign national must maintain an unabandoned foreign residence abroad.
- The foreign national must demonstrate forceful and compelling ties which would lend credibility to the sponsor's undertaking.
- The foreign national must present specific and realistic plans for the contemplated visit.
- The period of time projected for the visit must be consistent with the stated purpose of the trip.
- The applicant must establish with reasonable certainty that departure from the U.S. will take place upon completion of the temporary visit.
- The proposed period of stay must be expressed in terms of remaining for the maximum period allowable by U.S. authorities.
- The foreign national must demonstrate sufficient ties to his/her home country, such as employment, business, financial connections, close family ties, or other commitments that indicate a strong inducement to return abroad.
- The foreign national must provide information as to the provision for support of his/her spouse and children while the applicant is in the U.S., where the foreign national is the family's principal wage earner.
- The foreign national's prior visa/ immigration history is relevant to the consular officer's determination whether to issue the requested visa.
Visa Waiver Pilot Program
The Visa Waiver Pilot Program is a program which allows individuals from particular countries to enter the U.S. for business or pleasure without a visa. The Visa Waiver permits a foreign national to remain in the U.S. for a maximum ninety day period. Foreign nationals who enter the U.S. with a Visa Waiver cannot extend or amend their stay in the U.S. For example, if a foreign national enters the U.S. with a B-1 or B-2 visa, he/she may change status to that of an H-1B without leaving the country. A foreign national who enters the U.S. with a Visa Waiver must leave the country to obtain a new visa.
The advent of the Visa Waiver Pilot Program has made it increasingly difficult for foreign nationals from participating countries to get B visas since they must demonstrate a legitimate tourist or business purpose for a trip lasting longer than ninety days. The prospective B visitor should anticipate consular resistance to issuance of this visa and prepare adequate documentation to show why a visa is necessary to overcome the basic presumption that the applicant intends to remain permanently in the U.S. The applicant must be able to demonstrate the ability to stay in the U.S. without being employed and a specific agenda for which the applicant needs to remain in the U.S. beyond the ninety day limit of the Visa Waiver.
The B visa can be one of the most complex and challenging since the issues and elements of the B visa are almost entirely subjective. The consul's decision to issue or deny the B visa or permit entry into the United States is essentially nonappealable.
The criteria listed above are intended only as guidelines, and the presence or absence of any of them is not to be considered conclusive of the applicant's intent. Denial of the visa or entry is required by law where the consular or port-of-entry officer is not satisfied with the applicant's intent to return or abide by the terms of nonimmigrant status.
The B visa can be a very useful tool for foreign nationals to use to enter the U.S. to engage in business or tourist activities. Employers and foreign nationals should evaluate the purpose for which the foreign national may be entering the U.S. in order to determine whether the B visa is the most appropriate visa for the entry.