Allowable Business Activities under VWP versus Special Business Concession Visa
Author: Orlando Ortega-Medina, Esq.
(Originally published on 11 October 2010; Revised 30 April 2014)
One of the questions that our law firm receives most often from our business clients is, “What constitutes a proper business activity under the visa waiver program?” This question is most often posed by the businessperson who intends to carry out employment activities on behalf of his or her foreign employer, but who is unable to identify an applicable visa category. The truth is that the business activities that are allowed under the visa waiver program (VWP), are quite limited and circumscribed, and attempts to enter the United States to carry out activities that exceed these limits often result in a denial of admission.
The purpose of this article is twofold: a.) to more precisely identify those business activities that are permissible under VWP; and b.) to specify the various special concessions contained in the relevant regulations that will allow certain individuals to access the United States for employment purposes on behalf of their foreign employers via a specially annotated visa.
Allowable Business Activities under VWP or on a B-1 Visa
Individuals who desire to enter the United States for business purposes and who are otherwise eligible for visa issuance, may be classifiable as nonimmigrant B-1 visitors. Engaging in business contemplated for B-1 visa classification generally entails business activities other than the performance of skilled or unskilled labor. Thus, the issuance of a B-1 visa is not intended for the purpose of obtaining and engaging in employment whilst in the United States. Specific circumstances or past patterns have been found to fall within the parameters of this classification and are listed below.
It can be difficult for the layman to distinguish between appropriate B-1 business activities, and activities that constitute skilled or unskilled labor in the United States that are not appropriate on B status. The clearest legal definition comes from the decision of the Board of Immigration Appeals in Matter of Hira (Interim Decision 1647, 1966), affirmed by the Attorney General.
The Hira matter involved a tailor measuring customers in the United States for suits to be manufactured and shipped from outside the United States. The decision stated that this was an appropriate B-1 activity, because the principal place of business and the actual place of accrual of profits, if any, was in the foreign country. Most of the following examples of proper B-1 business activities are drawn from, and relate to the Hira ruling, in that they relate to activities that are incidental to work that will principally be performed outside of the United States.
As per the US Department of State’s Foreign Affairs Manual, Aliens should be classified B-1 visitors for business, if otherwise eligible, so long as they are traveling to the United States to do one of the following:
1.) Engage in commercial transactions, which do not involve gainful employment in the United States (such as a merchant who takes orders for goods manufactured abroad);
2.) Negotiate contracts;
3.) Consult with business associates;
5.) Participate in scientific, educational, professional, or business conventions, conferences, or seminars; or
6.) Undertake independent research.
The statutory terms of INA 101(a)(15)(B) specifically exclude from this classification aliens coming to the United States to perform skilled or unskilled labor. Aliens coming to the United States for the purpose of pursuing employment which does not qualify them for A, C, D, E, G, H, I, J, L, O, P, Q, or NATO status must be classified as immigrants, and will be excluded unless they are in possession of a valid immigrant visa.
Special Business Concession Visa Annotations under the FAM
The Foreign Affairs Manual identifies specific special concessions for aliens who may be eligible for B-1 business visas, and who intend to exceed the Hira list of permitted business activities, provided they meet the criteria of one of the non-exhaustive categories listed below. (Note: An individual who normally accesses the United States via VWP should make a special application to the Department of State with regards to any of the following special concession categories.)
1. Members of Board of Directors of US Corporation
An alien who is a member of the board of directors of a US 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.
2. Investor Seeking Investment in United States
An alien seeking investment in the United States, including an investment that would qualify him or her for status as an E-2 investor. Such an alien is precluded from performing productive labor or from actively participating in the management of the business prior to being granted E-2 status.
3. Aliens Normally Classifiable as H-1 or H-3 (i.e. “in lieu of H”)
There are cases in which aliens who qualify for H-1 or H-3 visas may more appropriately be classified as B-1 visa applicants in certain circumstances; e.g., a qualified H-1 or H-3 visa applicant coming to the United States to perform H-1 services or to participate in a training program.
In such a case, the applicant must not receive any salary or other remuneration from a US source other than an expense allowance or other reimbursement for expenses incidental to the alien’s temporary stay. It is essential that the remuneration or source of income for services performed in the United States continue to be provided by the business entity located abroad, and that the alien meets the following criteria:
- With regard to foreign-sourced remuneration for services performed by aliens admitted in this category, where a US business enterprise or entity has a separate business enterprise abroad, the salary paid by such foreign entity shall not be considered as coming from a “US source;”
- In order for an employer to be considered a “foreign firm” the entity must have an office abroad and its payroll must be disbursed abroad. To qualify for a B-1 visa, the employee must customarily be employed by the foreign firm, the employing entity must pay the employee’s salary, and the source of the employee’s salary must be abroad; and
- An alien classifiable H-2 shall be classified as such notwithstanding the fact that the salary or other remuneration is being paid by a source outside the United States, or the fact that the alien is working without compensation (other than a voluntary service worker classifiable B-1). A nonimmigrant visa petition accompanied by an approved labor certification must be filed on behalf of the alien.
4. Personal Employees of Foreign Nationals in Nonimmigrant Status
A personal or domestic employee who accompanies or follows to join an employer who is seeking admission into, or is already in, the United States in B, E, F, H, I, J, L, M, O, P, or Q nonimmigrant status, must meet the following requirements:
- The employee has a residence abroad which he or she has no intention of abandoning (notwithstanding the fact that the employer may be in a nonimmigrant status which does not require such a showing);
- The employee can demonstrate at least one year’s experience as a personal or domestic employee;
- The employee has been employed abroad by the employer as a personal or domestic employee for at least one year prior to the date of the employer’s admission to the United States; OR If the employee-employer relationship existed immediately prior to the time of visa application, the employer can demonstrate that he or she has regularly employed (either year-round or seasonally) personal or domestic employees over a period of several years preceding the domestic employee’s visa application for a nonimmigrant B-1 visa;
- The employer and the employee have signed an employment contract which contains statements that the employee is guaranteed the minimum or prevailing wages, whichever is greater, and free room and board, and the employer will be the only provider of employment to the employee;
- The employer must pay the domestic’s initial travel expenses to the United States, and subsequently to the employer’s onward assignment, or to the employee’s country of normal residence at the termination of the assignment.
5. Personal/Domestic Employees of US Citizens Residing Abroad
Personal or domestic employees who accompany or follow to join US citizen employers who have a permanent home or are stationed in a foreign country and who are visiting the United States temporarily. The employer-employee relationship must have existed prior to the commencement of the employer’s visit to the United States.
6. Personal/Domestic Employees of US Citizens on Temporary Assignment in United States
a. Personal or domestic employees who are accompanying or following to join US citizen employers temporarily assigned to the United States provided that:
- The employee has a residence abroad which he or she has no intention of abandoning;
- The alien has been employed abroad by the employer as a personal or domestic servant for at least six months prior to the date of the employer’s admission to the United States;
- In the alternative, the employer can show that while abroad the employer has regularly employed a domestic servant in the same capacity as that intended for the applicant;
- The employee can demonstrate at least one year experience as a personal or domestic servant by producing statements from previous employers attesting to such experience; and
- The employee is in possession of an original contract or a copy of the contract, to be presented at the port of entry, which contains the original signatures of both the employer and the employee.
b. The US citizen employer is subject to frequent international transfers lasting two years or more as a condition of the job as confirmed by the employer’s personnel office and is returning to the United States for a stay of no more than four years. The employer will be the only provider of employment to the domestic employee and will provide the employee free room and board and a round trip airfare as indicated under the terms of the employment contract; and
c. The required employment contract has been signed and dated by the employer and employee and contains a guarantee from the employer that, in addition to the provisions listed in item (b) above, the employee will receive the minimum or prevailing wages whichever is greater for an eight hour work-day. The employment contract shall also reflect any other benefits normally required for US domestic workers in the area of employment. The employer will give at least two weeks notice of his or her intent to terminate the employment, and the employee need not give more than two weeks notice of intent to leave the employment.
7. Personal Employees/Domestics of Lawful Permanent Residents (LPRs)
Personal employees of all lawful permanent residents (LPRs), including conditional permanent residents and LPRs who have filed an Application to Preserve Residence for Naturalization Purposes, must obtain permanent resident status, as it is contemplated that the employing LPR is a resident of the United States.
8. Professional Athletes
a. Professional athletes, such as golfers and auto racers, who receive no salary or payment other than prize money for his or her participation in a tournament or sporting event.
b. Athletes or team members who seek to enter the United States as members of a foreign-based team in order to compete with another sports team shall be admitted provided:
- The foreign athlete and the foreign sports team have their principal place of business or activity in a foreign country;
- The income of the foreign-based team and the salary of its players are principally accrued in a foreign country; and
- The foreign-based sports team is a member of an international sports league or the sporting activities involved have an international dimension.
c. Amateur hockey players who are asked to join a professional team during the course of the regular professional season or playoffs for brief try-outs. The players are draft choices who have not signed professional contracts, but have signed a memorandum of agreement with a National Hockey League (NHL)-parent team. Under the terms of the agreement, the team will provide only for incidental expenses such as round-trip fare, hotel room, meals, and transportation. At the time of the visa application or application for admission to the United States, the players must provide a copy of the memorandum of agreement and a letter from the NHL team giving the details of the try-outs. If an agreement is not available at that time, a letter from the NHL team must give the details of the try out and state that such an agreement has been signed.
9. Yacht Crewmen
Crewmen of a private yacht who are able to establish that they have a residence abroad which they do not intend to abandon, regardless of the nationality of the private yacht. The yacht is to sail out of a foreign home port and cruising in US waters for more than 29 days.
10. Horse Races
An alien coming to the United States to perform services on behalf of a foreign-based employer as a jockey, sulky driver, trainer, or groomer.
11. Outer Continental Shelf (OCS) Employees
a. The Outer Continental Shelf Lands Act Amendments of 1978 (OCSLA) were enacted on September 18, 1978. 43 USC. 1356 of OCSLA directs, that with specified exceptions, all units operating on the Outer Continental Shelf (OCS) must employ only US citizens or lawful permanent resident (LPR) aliens as members of the regular complement of the unit. Subsequently, the US Coast Guard issued regulations (33 CFR 141), which became effective on April 5, 1983. The regulations contain guidelines concerning exemptions available to units operating on the OCS.
b. Not included are nonmembers of the regular complement of a unit such as specialists, professionals, or other technically trained personnel called in to handle emergencies or other temporary operations, and extra personnel on a unit for training or for specialized operation; i.e., construction, alteration, well logging, or unusual repairs or emergencies.
12. Ministers of Religion Exchanging Pulpits
Ministers of religion temporarily exchanging pulpits with US counterparts who will continue to be reimbursed by the foreign church and will draw no salary from the host church in the United States.
13. Missionary Work
Members of religious denominations, whether ordained or not, entering the United States temporarily for the sole purpose of performing missionary work on behalf of a denomination, so long as the work does not involve the selling of articles or the solicitation or acceptance of donations and provided the minister will receive no salary or remuneration from US sources other than an allowance or other reimbursement for expenses incidental to the temporary stay. “Missionary work” for this purpose may include religious instruction, aid to the elderly or needy, proselytizing, etc. It does not include ordinary administrative work, nor should it be used as a substitute for ordinary labor for hire.
14. Applicant Who Are Unable to Otherwise Qualify for R Status
In cases where an applicant is coming to perform voluntary services for a religious organization, and does not qualify for R status, the B-1 status remains an option, provided that the applicant meets the requirements in 9 FAM 41.31 N9.1, even if he or she intends to stay a year or more in the United States.
15. Participants in Voluntary Service Programs
a. Aliens participating in a voluntary service program benefiting US local communities, who establish that they are members of, and have a commitment to, a particular recognized religious or nonprofit charitable organization. No salary or remuneration should be paid from a US source, other than an allowance or other reimbursement for expenses incidental to the volunteers’ stay in the United States.
b. A “voluntary service program” is an organized project conducted by a recognized religious or nonprofit charitable organization to assist the poor or the needy or to further a religious or charitable cause. The program may not, however, involve the selling of articles and/or the solicitation and acceptance of donations. The burden that the voluntary program meets the Department of Homeland Security (DHS) definition of “voluntary service program” is placed upon the recognized religious or nonprofit charitable organization, which must also meet other criteria set out in the DHS Operating Instructions with regard to voluntary workers.
Other Business Activities Classifiable as B-1
While the categories listed below generally may be classified under the proper applicable nonimmigrant class, i.e., A, E, H, F, L, or M visas, the US Department of State may issue properly annotated visas to otherwise eligible aliens under the criteria provided below.
I. Commercial or Industrial Workers
a. An alien coming to the United States to install, service, or repair commercial or industrial equipment or machinery purchased from a company outside the United States or to train US workers to perform such services. However, in such cases, the contract of sale must specifically require the seller to provide such services or training and the visa applicant must possess specialized knowledge essential to the seller’s contractual obligation to perform the services or training and must receive no remuneration from a US source.
b. These provisions do not apply to an alien seeking to perform building or construction work, whether on-site or in-plant. The exception is for an alien who is applying for a B-1 visa for supervising or training other workers engaged in building or construction work, but not actually performing any such building or construction work.
II. Foreign Airline Employees
- Foreign airline employee aliens who:
- Seek to enter the United States for employment with a foreign airline that is engaged in international transportation of passengers and freight;
- Are working in an executive, supervisory, or highly technical capacity; and
- Otherwise meet the requirements for E visa classification but are precluded from entitlement to treaty trader E-1 classification solely because there is no treaty of friendship, commerce, and navigation in effect between the United States and the country of the aliens’ nationality, or because they are not nationals of the airline’s country of nationality.
III. Employees of Foreign Airlines Coming to United States to Join Aircraft
Employees of foreign airlines coming to the United States to join aircraft may also be documented as B-1 visitors in that they are not transiting the United States and are not admissible as crewmen. Such applicants, however, must present a letter from the headquarters branch of the foreign airline verifying their employment and the official nature of their duties in the United States.
Except as in the case described below, aliens who wish to obtain hands-on clerkship experience are not deemed to fall within B-1 visa classification.
a.) Medical Clerkship: An alien who is studying at a foreign medical school and seeks to enter the United States temporarily in order to take an “elective clerkship” at a US medical school’s hospital without remuneration from the hospital. The medical clerkship is only for medical students pursuing their normal third or fourth year internship in a US medical school as part of a foreign medical school degree. (An “elective clerkship” affords practical experience and instructions in the various disciplines of medicine under the supervision and direction of faculty physicians at a US medical school’s hospital as an approved part of the alien’s foreign medical school education. It does not apply to graduate medical training, which is restricted by 212(e) and normally requires a J-visa.)
V. Business or Other Professional or Vocational Activities
An alien who is coming to the United States merely and exclusively to observe the conduct of business or other professional or vocational activity may be classified B-1, provided the alien pays for his or her own expenses. However, aliens, often students, who seek to gain practical experience through on-the-job training or clerkships must qualify under INA 101(a)(15)(H) or (L), or when an appropriate exchange visitors program exists (J).
VI. Participants in Foreign Assistance Act Program
An alien invited to participate in any program furnishing technical information and assistance under section 635(f) of the Foreign Assistance Act of 1961, 75 Statute 424.
VII. Peace Corps Volunteer Trainers
An alien invited to participate in the training of Peace Corps volunteers or coming to the United States under contract pursuant to sections 9 and 10(a)(4) of the Peace Corps Act (75 Statute 612), unless the alien qualifies for A classification.
VIII. Internship with United Nations Institute for Training and Research (UNITAR)
Participants in the United Nations Institute for Training and Research (UNITAR) program of internship for training and research who are not employees of foreign governments.
IX. Aliens Employed by Foreign or US Exhibitors at International Fairs or Expositions
Aliens who are coming to the United States to plan, construct, dismantle, maintain, or be employed in connection with exhibits at international fairs or expositions may, depending upon the circumstances in each case, qualify for one of the following classifications.
X. Foreign Government Officials
Aliens representing a foreign government in a planning or supervisory capacity and/or their immediate staffs are entitled to “A” classification if an appropriate note is received from their government, and if they are otherwise properly documented.
XI. Employees of Foreign Exhibitors
Employees of foreign exhibitors at international fairs or expositions who are not foreign government representatives and do not qualify for “A” classification ordinarily are classified B-1.
XII. Employees of US Exhibitors
While alien employees of US exhibitors or employers are not eligible for B-1 visas they may be classifiable as H-1 or H-2 temporary workers.
I. Artists and Entertainers
a. Except for the following cases, B visa status is not appropriate for a member of the entertainment profession (professional entertainer) who seeks to enter the United States temporarily to perform services. Instead, performers shall be accorded another appropriate visa classification, which in most cases will be P, regardless of the amount or source of compensation, whether the services will involve public appearance(s), or whether the performance is for charity or US based ethnic society.
b. The term “member of the entertainment profession” includes not only performing artists such as stage and movie actors, musicians, singers and dancers, but also other personnel such as technicians, electricians, make-up specialists, film crew members coming to the United States to produce films, etc.
c. A professional entertainer may be classified B-1 if the entertainer:
- Is coming to the United States to participate only in a cultural program sponsored by the sending country;
- Will be performing before a nonpaying audience; and
- All expenses, including per diem, will be paid by the member’s government.
d. A professional entertainer may be classified B-1 if the entertainer is coming to the United States to participate in a competition for which there is no remuneration other than a prize (monetary or otherwise) and expenses.
e. An artist coming to the United States to paint, sculpt, etc. who is not under contract with a US employer and who does not intend to regularly sell such art-work in the United States.
II. Still Photographers
The Department of Homeland Security (DHS) permits still photographers to enter the United States with B-1 visas for the purpose of taking photographs, provided that they receive no income from a US source.
An alien musician may be issued a B-1 visa, provided:
- The musician is coming to the United States in order to utilize recording facilities for recording purposes only;
- The recording will be distributed and sold only outside the United States; and
- No public performances will be given.
IV. Medical Doctors Observing and Consulting with US Colleagues
A medical doctor otherwise classifiable H-1 as a member of a profession whose purpose for coming to the United States is to observe US medical practices and consult with colleagues on latest techniques, provided no remuneration is received from a US source and no patient care is involved. Failure to pass the Foreign Medical Graduate Examination (FMGE) is irrelevant in such a case.
V. H-3 Trainees
a. Aliens already employed abroad, who are coming to undertake training and who are classifiable as H-3 trainees. Department of Homeland Security (DHS) regulations state that in order for an alien to be classifiable as H-3, the petitioner must demonstrate that:
- The proposed training is not available in the alien’s own country;
- The beneficiary will not be placed in a position which is in the normal operation of the business and in which citizens and resident workers are regularly employed;
- The beneficiary will not engage in productive employment unless such employment is incidental and necessary to the training; and
- The training will benefit the beneficiary in pursuing a career outside the United States.
b. They will continue to receive a salary from the foreign employer and will receive no salary or other remuneration from a US source other than an expense allowance or other reimbursement for expenses (including room and board) incidental to the temporary stay. In addition, the fact that the training may last one year or more is not in itself controlling and it should not result in denial of a visa, provided the consular official is satisfied that the intended stay in the United States is temporary, and that, in fact, there is a definite time limitation to such training.
When an Advisory Opinion is Required
Finally, even though the above-noted categories are quite specific, there are some cases that defy categorization. In such cases, the US State Department is required to request an advisory opinion (AO) prior to the issuance of a B-1 visa in any case involving temporary employment in the United States. An AO is required in these cases to ensure uniformity and to avoid the issuance of a B-1 to an alien subject to the safeguards of the petition and labor certification requirements.
Orlando Ortega-Medina is lead counsel for the US business immigration law firm of Ortega-Medina & Associates, headquartered in London, England (UK). The firm also maintains an Of Counsel relationship with The Erlich Firm in San Francisco, California. Mr. Ortega-Medina has particular expertise and insight into complex visa cases, and is frequently engaged by other counsel to troubleshoot visa denials.
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