Business Visitors (B-1)

The business visitor classification permits foreign business travelers to temporarily enter the U.S. for business-related purposes. These might include participation in conventions and conferences, conducting sales activity, meeting with U.S. business people, and similar activities. While the scope of potential activities is in some respects broad, the key limitation is that individuals may not seek or engage in employment activities or perform skilled or unskilled labor for compensation. The distinctions between permissible and impermissible activities can be vague, however, and in uncertain situations a business person would be wise to seek guidance.

Eligibility

In order to obtain U.S. entry as a business visitor, an individual must demonstrate that she:

• Maintains a residence in a foreign country which she has no intention of abandoning; and
• Seeks admission for the sole purpose of engaging in a legitimate business activity.

The rules define "business" as a legitimate commercial or professional activity;

There are a number of factors which consular officers and immigration inspectors are particularly keen on substantiating, including that:

• The individual intends to leave the U.S. at the end of her authorized stay (sometimes requiring a bond to be posted if not convinced);
• The individual has a passport or other permission ensuring that he may enter another country at the end of her authorized stay; and
• The individual maintains sufficient financial resources for the purpose of the visit and timely departure from the U.S.

Permissible Activities

It is perhaps easier to identify what business visitor status does not permit as opposed to that which it does. It is clear that the performance of skilled or unskilled labor is not permitted, nor is entry permitted to for purposes of obtaining or engaging in employment. A business visitor may clearly not enter the U.S. for the purpose of looking for a job.

Following is a non-comprehensive list of some of the general and specific activities which business visitors are expressly permitted to engage in by regulation or administrative decision:

• Engaging in commercial transactions which do not involve employment, such as where a merchant takes orders for goods manufactured abroad;
• Negotiating contracts;
• Consulting with business associates;
• Litigating;
• Participating in scientific, educational, professional or business conventions, conferences, or seminars;
• Undertaking independent research;
• Participating in a professional sporting event where prize money is the only compensation;
• Employment as a jockey, trainer or groom, provided that the individuals are coming to the United States to perform services on behalf of a foreign-based employer;
• Seeking investment for a business that would qualify the individual as a Treaty investor;
• Employment by certain individuals who will be employed on the Outer Continental Shelf;
• Installing, servicing, or repairing equipment purchased from a company outside the U.S. or training U.S. workers to perform those services;
• Employment of certain executives, managers and technicians of foreign-owned international airlines or to ferry aircraft abroad;
• Elective medical clerkships without remuneration for the purpose of receiving training, instruction, and practical experience as part of a foreign medical school degree;
• Business or professional clerkships without remuneration and limited to observation (with no element of practical on-the-job training), provided the visitor pays for his or her own expenses; and
• Exhibiting at international fairs or exhibitions; and
• Commercial truck drivers engaged only in carrying merchandise in international commerce (conveyance of domestic loads is prohibited).

Compensation

Business visitors may not receive a salary from a U.S. source while engaging in otherwise permitted activities, but there are a number of forms of compensation that would pass muster. These include:

• An expense allowance or reimbursement for expenses incidental to the temporary stay which do not exceed actual reasonable expenses for travel, food, lodging, laundry and other related expenses; and
• Payment of an honorarium (in addition to travel expenses) for appearances at institutions of higher learning and their affiliates, or government research institutions, provided that the individual has received honoraria from no more than five such institutions within six months and certain other conditions are met.

Duration

Business visitors are generally admitted for up to 6 months, but may be admitted for up to one year, initially, and may obtain extensions in six month increments without specific limitation. The business visitor may not, however, maintain indefinite residence by reentering the U.S. every six months.

Dependents/Employees

The spouse and minor children of business visitors may enter in B-2 status as visitors for pleasure. In certain situations, domestic employees of business visitors may also enter and maintain their employment for the duration of their principal's visit.

Advantages of B-1 Over Visa Waiver Program (VWP)

The VWP permits individuals from more than 35 countries to enter the U.S. in order to pursue the activities of visitors for business or pleasure without first securing a visa from a U.S. consulate. There are, however, a number of advantages to securing a business visitor’s visa even where VWP is available. These include:

• Admission for one year or more rather than ninety days, and the ability to secure extensions of stay without leaving the country;
• Eligibility to pursue change of status to a different nonimmigrant status or adjustment to permanent resident status; and
• Significantly greater procedural rights to challenge an order of removal and to a hearing before an immigration judge, and subsequent appeal rights.

Visa Waiver Program Countries

As of September 2016, with certain exceptions, citizens or nationals of the following countries are eligible to travel to the United States under the VWP after obtaining authorization under ESTA (the Electronic System for Travel Authorization). A full description of the VWP requirements is available at https://travel.state.gov/content/visas/en/visit/visa-waiver-program.html. As noted above, there are circumstances where even those eligible to come to the U.S. under the VWP may wish to obtain a B-1 visa.

ESTA – Pre-travel Authorization Requirement for Visa Waiver Entrants

Since January 2009, visitors traveling to the U.S. through the Visa Waiver Program have been required to apply for and obtain pre-travel authorization through the Electronic System for Travel Authorization (ESTA).

Individuals must obtain authorization through ESTA if they are:

• A citizen or eligible national of a Visa Waiver Program country;
• Currently not in possession of a visitor's visa;
• Traveling to the U.S. for 90 days or less; and
• Plan to travel to the United States for business or pleasure.

The application is completed online at https://esta.cbp.dhs.gov/esta/ (a website that can also be used to check the status of pending ESTA applications). ESTA collects basic information on each traveler, their travel plans, and their eligibility to enter the U.S. Although the traveler is responsible for the truthfulness of information submitted through ESTA, the application itself can be completed by the traveler, their friend, relative, or other third party. ESTA can also be completed for multiple travelers at the same time, through a group application.

The ESTA application costs US$14 (which can be paid by Visa, MasterCard, American Express, Discover, or PayPal) and ESTA authorization is valid for two years or until the passport used for the application expires, whichever comes first.

Electronic Visa Update System (EVUS) – Pre-Departure Information Update Requirement for Certain Travelers with Nonimmigrant Visas

In October 2016, Customs and Border Protection (“CBP”) established a program requiring that travelers from designated countries holding designated types of U.S. nonimmigrants visas provide regular online information updates in order to maintain the validity of their visas. The “Electronic Visa Update System” (EVUS) requires subject visa holders to provide online informational updates during the validity period of their visas. A successful EVUS update generates a “notification of compliance” which, with the visa itself, is required for admission to the U.S.

If a subject traveler fails to timely perform an EVUS update, the State Department will provisionally revoke the visa. Upon performing the update, the visa will be reinstated, unless revoked on other grounds.

(EVUS) will initially apply only to citizens of the Peoples Republic of China holding a Chinese passport who have been issued a 10-year, multiple entry B-1, B-2, or B-1/B-2 visitor visa. However, according to U.S. Customs and Border Protection, EVUS is expected to be “applied to additional countries in the future,” although no plans for expansion beyond Chinese B-1/B-2 visa holders have been announced as of November 1, 2016.

The EVUS information update process is completed online at www.evus.gov, and can be completed by the traveler, their relative, a travel agent, or another third party. EVUS collects basic information on the individual, their travel plans, and their eligibility to enter the U.S. The information collected is similar to ESTA (required for individuals coming to the U.S. on the visa waiver program), and is also similar to the nonimmigrant visa application (Form DS-160), albeit shorter. Most EVUS enrollments are expected to be adjudicated within 72 hours, although some enrollments may be confirmed faster. The decision is sent to the email address provided on the EVUS application. Enrollment status can also be checked online at www.evus.gov, by providing the applicant’s passport number, visa foil number, date of birth, and other biographic information.

If EVUS enrollment is unsuccessful, the applicant’s visa will be provisionally revoked until such a time as there is a successful enrollment. Individuals who receive notification of unsuccessful enrollment are advised to contact the CBP EVUS call center for assistance prior to re-attempting enrollment. A subsequent successful enrollment will supersede the prior unsuccessful attempt.

If granted, EVUS enrollment is valid for two years, or until the information provided in the EVUS application changes, or the passport used for the application expires, whichever comes first.

However, even a two-year enrollment is not guaranteed to remain valid. During this validity period, EVUS enrollment can be rescinded and the underlying visa can be revoked. Those who have previously successfully enrolled in EVUS should confirm their enrollment validity prior to each trip to the U.S. by checking their EVUS status at www.evus.gov.

Additional information is available on the following websites:

• www.evus.gov
• www.cbp.gov/travel/international-visitors/electronic-visa-update-system-evus/frequently-asked-questions
• www.cbp.gov/newsroom/national-media-release/cbp-announces-electronic-visa-update-system