What Does It Mean to Visit the United States for Business Purposes?

It is common knowledge that individuals without US passports or green cards can visit the United States for tourism or for business purposes for a temporary period. In some cases, this travel requires a visa issued by a US consular post, and in others, individuals can make use of the Visa Waiver Program, traveling visa-free after acquiring approval through the Electronic System for Travel Authorization (ESTA). What isn’t well understood, in my experience, is the range of activities that are permissible for business visitors versus activities that require a work visa. In the following, I’ll explore the relevant legal authorities to pin down a definition of business visitor.
 
Business Visitor and the B-1 Visa
 
A non-immigrant visitor is described by statute at INA § 101(a)(15)(B) 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 United States temporarily for business or temporarily for pleasure.”
 
Regulations enacted to clarify the statute are in force at 22 CFR § 41.31. According to subsection (b) Definitions, “(1) The term “business,” as used in INA 101(a)(15)(B), refers to conventions, conferences, consultations and other legitimate activities of a commercial or professional nature. It does not include local employment or labor for hire.”
 
In addition to this nebulous definition, we have some case law on the topic of what constitutes a visit for business purposes. One of the most instructive and regularly cited cases is Matter of Hira, 11 I&N Dec. 824 (BIA 1966). Here, a tailor employed by a company in Hong Kong entered the United States for the purpose of taking orders and measurements for suits. The tailor then returned with the orders to Hong Kong where the company produced these suits for delivery to the United States. The Board of Immigration Appeals concluded that because the place of accrual of profits, the place of payment of wages and the place where the work was predominantly performed were all in a foreign country, and because the tailor’s stay in the United States was clearly temporary, the business visitor category was appropriate. The following test has been extrapolated from that case and others subsequent.

• Does the applicant have a clear intent to continue foreign (non-US) residence?
• Is the travel clearly of a temporary nature?
• Will the foreign employer, if any, direct and control the terms, conditions, compensation and activities of the employment?
• Will all remuneration to the applicant transact outside the United States?
• Is the principal place of business and actual accrual of profits stemming from the activities predominantly in a foreign country?
• Are the services to be performed ones for which a US worker would not be hired?
• Are the services to be performed inherently outside the US labour market?
• Are the activities in furtherance of international commerce or business?
• Can you confirm the services to be performed do not benefit a US institution? (This is defined in a legacy INS memorandum from 2000 as “primarily benefiting the US entity as local work or hire (as contrasted with benefiting the alien him/herself or the foreign employer in furtherance of international trade)”.)

If the answer to all of these questions is “yes”, the intended activities should be acceptable for business visitors. If the answer to any of these questions is “no”, then the US activities would likely be deemed local employment or labour for hire (i.e., requiring a work visa).
 
That said, the Foreign Affairs Manual published by the US Department of State contains guidance at 9 FAM 402.2 including exceptions to the above for very specific circumstances. These exceptions exist for certain ministers and missionaries, participants in voluntary service programs, corporate directors, professional athletes, yacht crewmen, coasting officers, investors in US companies, horse racing professionals, Outer Continental Shelf employees, domestic employees, commercial or industrial workers, foreign airline employees, clerkship participants, participants in a Foreign Assistance Act program, Peace Corps volunteer trainers, UN interns, employees of international fairs or expositions, medical doctors, trainees, entertainers and artists, participants in cultural programs and international competitions, and still photographers. If any of these categories encompass a traveler, it would be important to review the FAM provisions before applying for a B-1 visa.
 
Visa Waiver Program
 
The Visa Waiver Program is set forth by statute in the Immigration and Nationality Act (INA) Section 217, which allows for nationals of certain countries to apply “for admission during the program as a nonimmigrant visitor (described in section 101(a)(15)(B)) for a period not exceeding 90 days.” (INA § 217(a)(1).) This means that the individual can travel to the United States without first obtaining a visa from a US consular post.
 
An individual from a listed nation such as the United Kingdom may be eligible to use the Visa Waiver Program for business travel, as long as these conditions are met:

• The traveller has valid authorisation to travel through the Electronic System for Travel Authorization (ESTA).
• The traveler has a round-trip ticket and maintains a foreign residential address.
• The period of admission to the United States will be 90 days or less.
• If traveling on behalf of a foreign employer, the traveller will remain an employee of the foreign employer during the travel.
• The traveller will receive no remuneration from a US source.
• The intended activities of the traveller are permissible activities for business visitors to the United States.

For travellers on the Visa Waiver Program, the assessment of whether intended activities in the United States fall within the accepted parameters of a visit for business will be conducted by the US Customs & Border Protection Agency (CBP) when the traveller reaches the US border. Accordingly, the guidance by CBP will govern the admission rather than the guidance provided by the State Department. This guidance (available at https://www.cbp.gov/sites/default/files/documents/B-1%20permissible%20activities.pdf) confirms:
I need to perform commercial or industrial services. Is this permissible?
a. As long as you are not receiving compensation from a U.S. employer or business it is
generally permissible. For instance, you may negotiate contracts, consult with business
associates, including attending meetings of the Board of Directors of a U.S. corporation,
litigate, participate in scientific, educational, professional, or business conventions,
conferences, or seminars, and undertake independent research.
 
Historically, CBP has considered the FAM to be noncontrolling supplemental guidance, so at least until that organization releases its new handbook to the public, FAM provisions are instructive for VWP travellers. (A lawsuit is underway to compel release of CBP’s internal guidance.)
 
Conclusion
 
Business visitors, whether traveling on a B-1 visa or the Visa Waiver Program, must be prepared to demonstrate in any encounter with a US immigration authority (e.g., the US Department of state, CBP, US Citizenship & Immigration Services) that their intended activities in the United States do not entail labour for hire. Judgments can only be made on a case-by-case basis in consideration of the factors discussed above.

Olivia McLaren is a U.S. qualified attorney admitted to the bar of the State of New York. After working in U.S. immigration and nationality law in New York City for a decade, Olivia moved to Edinburgh in 2014 and established Olivia McLaren, Ltd., a practice dedicated to strategic immigration assistance for businesses wishing to establish or strengthen a U.S. presence and individuals interested in visiting, working in or immigrating to the United States of America. Olivia has extensive experience representing businesses and individuals in U.S. immigration proceedings, including visa applications, permanent residence applications, naturalization applications, removal proceedings and federal litigation. 

Olivia can be contacted on +44 (0)131 221 6513 or by email at info@mclarenltd.com