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Allowable Business Activities under VWP versus Special Concession Business Visa

Allowable Business Activities under VWP versus Special Concession Business Visa

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.

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 versus a Standard 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. (Link to: http://www.justice.gov/eoir/vll/intdec/vol11/1647.pdf)

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;
  4. Litigate;
  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 Concession Business 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:

  1. 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;”
  2. 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
  3. 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:

  1. 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);
  2. The employee can demonstrate at least one year’s experience as a personal or domestic employee;
  3. 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;
  4. 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;
  5. 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 Employees/Domestics of Lawful Permanent Residents
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.

6. 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:
  1. The foreign athlete and the foreign sports team have their principal place of business or activity in a foreign country;
  2. The income of the foreign-based team and the salary of its players are principally accrued in a foreign country; and
  3. 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.

7. 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.

8. 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.

{mosbanner right}9. Outer Continental Shelf (OCS) Employees

  • 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.
  • 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.

10. 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.

11. 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.

12. 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.

13. Participants in Voluntary Service Programs

  • 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.
  • 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.
 

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