Have you ever had any foreign nationals “visit” your company from one of your entities outside the U.S.? Did you help the foreign national visitor fit right in and seem like part of your team and like any other employee? Did you allow him/her to conduct their regular activities in the same way they do while working abroad? If so, you might have inadvertently assisted your company in employing a foreign national without work authorization, and also, placed the foreign national visitor in a difficult situation that might prevent him/her from seeking immigration benefits (or entering the U.S. altogether) in the future.
In the very internationally connected business world, these days, hosting or inviting a foreign national from one of your foreign entities to travel to the U.S. on their B-1 Business Visitor Visa (“B-1 Visa”) might seem like a relatively normal and casual event. As long as the activities conducted while the foreign national visitor (B-1 Visitor) is physically in the U.S. stay within the boundaries of the B-1 permissible activities, this event very well might be “uneventful” after all. However, what many companies do not realize is that the line between permissible B-1 activities and unauthorized “work” is often blurry, and/or easy to cross from one side to the other.
The Risky Scenario
A common scenario is as follows: Your company is having issues with its equipment/machinery and in training its employees on how to use the equipment while conforming to product standards and customer expectations. So, you immediately think of your loyal and highly specialized Quality Manager from your headquarters in Europe (or South America or Asia, or right next door in Canada or Mexico). You consider how useful and beneficial it would be to have him/her visit your company in the U.S., possibly for an extended stay, to help manage or “fix” the equipment issues and employee training problems. You bring him/her over on the B-1 Visa and let him/her “do what they do best” without any parameters or restrictions. You assume that because the B-1 Visitor remains on the payroll of your headquarters abroad, that there is no unauthorized “employment” (or perhaps that thought doesn’t even cross your mind?). You might even furnish the B-1 Visitor with the company’s U.S. e-mail and allow use of a “signature line” on the e-mail using the company’s U.S. address, to facilitate interaction between the B-1 Visitor and the company’s employees and customers. After a successful stay lasting several months, the equipment is functioning properly, your employees are better trained, your products or services are meeting quality standards and your customers are happy! The B-1 Visitor properly departs the U.S. before the expiration date of the authorized stay stamped in his/her passport.
The Consequences
Without even realizing it, your company just employed the B-1 Visitor without U.S. work authorization, and jeopardized that B-1 Visitor’s eligibility for future U.S. immigration benefits (or from visiting the U.S. altogether). It is very possible (and even likely) that the B-1 Visitor won’t be so lucky upon the next arrival to the U.S., especially if the next visit is in close proximity to the recent extended stay. The U.S. Customs and Border Protection (“CBP”) maintains a record of anything discussed in previous visits regarding reason for visiting the U.S. or intended activities, in addition to the actual entry/departure dates. The CBP can search cell phones, including e-mails and other communication platforms, and will have access to all of those e-mails or correspondence that involved the B-1 Visitor. As if that’s not terrifying enough, the CBP then has tremendous discretion to not just refuse admission to the B-1 Visitor, but to cancel the Visa entirely, conduct an “expedited removal” of the B-1 Visitor back to the country of origin immediately, and bar that B-1 Visitor from travelling to the U.S. in any visa classification for 5 years or longer.
The Permissible (and Non-permissible) Activities
In the same scenario described above, it would be fine for the B-1 Visitor to stay for the full period of time permitted by CBP on the I-94 record of admission, to experience the U.S. business culture, improve English skills, become familiar with your U.S. operations. It would also be permissible for the B-1 Visitor to meet with company managers and executives, observe and discuss the issues with the equipment/machinery, employee training and quality standards. It could even be acceptable to meet with or visit the U.S. customers and help with business development and customer retention efforts (within certain parameters).
However, the moment that the B-1 Visitor’s activities cross over to what U.S. immigration officials perceive as “productive work”, the B-1 Visitor may be in violation of the terms and conditions of the B-1 Visa classification. Any hands-on training (provided or received), quality control oversight/management, with the employees, customers, service providers, etc., that is reasonably perceived to be work that a U.S. worker (or work authorized employee) could have performed, could result in a finding of unauthorized employment by a U.S. immigration official. Similarly, any activities that may have contributed to generating a profit for the company, may also be deemed to be outside the scope of the B-1 permissible activities. This is all regardless of where the actual compensation or remuneration originates.
Other permissible activities under the B-1 Visa classification likely under the scenario above include the following: Attending/Participating in Educational or Industry Conferences or Company Meetings; Gathering information and/or observing operations to report back to headquarters abroad; and Negotiating contracts among others. However, these activities are all subject to the CBP/Immigration officials’ interpretation and discretion, and as mentioned earlier, far too easy to cross over from the permissible to the impermissible.
Tips on minimizing the risk in the “risky” use of the B-1 Visa
When in doubt, it is best to secure the appropriate work authorized visa classification, such as the L-1 intracompany transferee, the E-1/E-2 Treaty Trader or other appropriate visa. However, if the anticipated activities in the U.S. are more appropriate for the B-1 classification than other work authorized visa classifications, it is still a common and useful mechanism for international business relations. Rather than entertaining the risky business described in the scenario above, though, both your company and the B-1 Visitor would be better off taking some of the following steps prior to the visit to the U.S.:
- Consult with a business immigration lawyer/advisor/specialist regarding the intended/anticipated activities in the U.S.
- Prepare a Business invitation letter on your company letterhead describing the permissible activities planned for the B-1 Visitor, including specific dates and schedules and projects involved and confirm the B-1 Visitor’s employment abroad (title and dates of employment and brief job description)
- Alert management/staff at your company that the B-1 Visitor cannot conduct activities that could be considered productive work, to prevent any appearance, assumption or expectation that they are “working” while visiting the U.S.
- Do not provide a U.S. e-mail or allow use of a signature with the U.S. address in the B-1 Visitor’s correspondence
- Avoid unnecessary communication with the B-1 Visitor that might be perceived as “work” if ever questioned or analyzed by an outside party (like CBP or an immigration officer)
- Discourage the B-1 Visitor from holding him/herself out as a regular company employee
- Do not reimburse or pay for any of the B-1 Visitor’s expenses while in the U.S. except for incidental expenses, such as conference tickets, meals and/or temporary lodging
About the Author:
Elissa N. Pinto is Of Counsel in Dickinson Wright’s Troy office where she represents local, national and international clients in all aspects of business immigration. She has practiced business immigration law for nearly 20 years. She speaks Portuguese fluently having a Brazilian heritage, and is proficient in Spanish and French. Elissa can be reached at 248-433-7277 or epinto@dickinsonwright.com and you can review her bio here.
