While foreign nationals cannot live and work in the United States on a visitor visa (B-1 or B-2) or under the visa waiver program, certain business activities are allowed. As a general matter, the B-1 business visitor visa or visa waiver permits the following activities:
Visitors traveling to the United States to engage in commercial transactions, negotiations, consultations, conferences, etc.
Business that may be conducted on a regular tourist visa or under the visa waiver program include:
A. Engaging in commercial transactions that do not involve gainful employment in the United States (such as a merchant who takes orders for goods manufactured abroad);
B. Negotiating contracts;
C. Consulting with business associates;
E. Participating in scientific, educational, professional or business conventions, conferences, or seminars; or
F. Undertaking independent research.
The following specific business activities are permitted if you are entering the U.S. with a regular visitor visa or under the visa waiver program, according to the Department of State Foreign Affairs Manual and other sources as identified below:
1. Members of Board of Directors of a U.S. Corporation
A visitor who is a member of the board of directors of a U.S. 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 the United States
A visitor seeking investment in the United States, including an investment that would qualify him or her for status as an E-2 investor. Such a visitor is precluded from performing productive labor or from actively participating in the management of the business prior to being granted E-2 status.
3. Prospective Intracompany Transferee
A visitor coming to open or be employed in a new branch, subsidiary, or affiliate of the foreign employer, if the visitor will become eligible for status as an L-1 (intracompany transferee) upon securing proof of acquisition of physical premises (See CBP manual);
4. Commercial or Industrial Workers
A visitor 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 U.S. workers to perform such services. In such cases, however, 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 U.S. source.
These provisions do not apply to a visitor seeking to perform building or construction work, whether on-site or in-plant except for an alien who is applying as a B-1 for the purpose of supervising or training other workers engaged in building or construction work, but not actually performing any such building or construction work)
5. Business or Other Professional or Vocational Activities
A visitor 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 visitor is paying for his or her own expenses.
Visitors, however, such as students, who seek to gain practical experience through on-the-job training or clerkships must qualify for an H (skilled worker), L (intracompany transferee) or J (exchange visitor) visa as appropriate.
6. Employees of Foreign Exhibitors
Employees of foreign exhibitors at international fairs or expositions who are not foreign government representatives ordinarily are classified B-1.
7. B-1 in Lieu of H-3 for Trainees
Visitors already employed abroad, who are coming to undertake training and who are classifiable as H-3 trainees may instead enter on a B-1 if the visitor demonstrates that:
A. The proposed training is not available in the visitor’s own country;
B. The visitor will not be placed in a job which is in the normal operation of the business and in which U.S. citizens and resident workers are regularly employed;
C. The visitor will not engage in productive employment unless such employment is incidental and necessary to the training; and
D. The training will benefit the visitor in pursuing a career outside the United States;
E. The visitor will continue to receive a salary from the foreign employer and will receive no salary or other remuneration from a U.S. source other than an expense allowance or other reimbursement for expenses (including room and board) incidental to the temporary stay.
8. B-1 in Lieu of H-1B
There are cases in which visitors may be performing services in the U.S., such as assisting briefly on a highly technical project, but who do so under a B-1 instead of an H-1B.
As a preliminary matter, consular officers will require that the work to be done in the United States should be at the H-1B level (i.e. a specialty occupation normally requiring a bachelor’s degree) and the visiting employee should have a bachelor’s degree relevant to the services to be provided. (See e.g. U.S. Consulate in Chennai)
The critical criteria, though, for being eligible for the B-1 in lieu of the H-1B is that the visiting employee must not receive any salary or other remuneration from a U.S. source, other than an expense allowance or other reimbursement for expenses incidental to the visitor’s temporary stay. The remuneration or source of income for services performed in the United States must be provided by a foreign source. In other words, by the business entity located abroad.
Where a U.S. business entity has a separate business enterprise abroad, the salary paid by such foreign entity shall not be considered as coming from a “U.S. source,” according to the Department of State.
Thus, 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. The visiting employee must 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.
*Please note the above list is not comprehensive. Other business-related activities may be allowed. Also, the list does not include the additional activities permitted under NAFTA to Canadian and Mexican citizen visitors.