Business Activities Permissible on A “B-1/B-2” Visitor Visa or Under the Visa Waiver Program

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The following business activities are allowed in the United States while in the country in either B-1/B-2 visitor status or under the “visa waiver program” [note references are to the U.S. State Department’s Foreign Affairs Manual (FAM)]:

Aliens Traveling to United States to Engage in Commercial Transactions, Negotiations, Consultations, Conferences, etc.

Aliens should be classified B-1visitors for business, if otherwise eligible, if they are traveling to the United States to:

(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.

Aliens Coming to United States to Pursue Employment Incidental to Their Professional Business Activities

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. Exception is made for aliens who may be eligible for B-1 business visas provided they meet the criteria of one of the categories listed below.

Members of Religious and Charitable Activities

Ministers on Evangelical Tour

Ministers of religion proceeding to the United States to engage in an evangelical tour who do not plan to take an appointment with any one church and who will be supported by offerings contributed at each

evangelical meeting.

Ministers of Religion Exchanging Pulpits

Ministers of religion temporarily exchanging pulpits with U.S. counterparts who will continue to be reimbursed by the foreign church and will draw no salary from the host church in the United States.

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 U.S. 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.

When Applicant Is Unable to 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.

Participants in Voluntary Service Programs

a. Aliens participating in a voluntary service program benefiting U.S. 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 U.S. 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.

c. You must assure that the written statement issued by the sponsoring organization is attached to the passport containing the visa for presentation to the DHS officer at the port of entry. The written statement will be furnished by the alien participating in a service program sponsored by the religious or nonprofit charitable organization and must contain DHS required information such as the:

(1) Volunteer’s name and date and place of birth;

(2) Volunteer’s foreign permanent residence address;

(3) Name and address of initial destination in the United States; and

(4) Volunteer’s anticipated duration of assignment.

Members of Board of Directors of U.S. Corporation

An alien 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.

Personal/Domestic Employees

Personal/Domestic Employees of U.S. Citizens Residing Abroad

Personal or domestic employees who accompany or follow to join U.S. 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 existed prior to the commencement of the employer’s visit to the United States.

Personal/Domestic Employees of U.S. Citizens on Temporary Assignment in United States

a. Personal or domestic employees who are accompanying or following to join U.S. citizen employers temporarily assigned to the United States provided you are satisfied that:

(1) The employee has a residence abroad which he or she has no intention of abandoning;

(2) 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;

(3) 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;

(4) 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

(5) 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 U.S. 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 U.S. 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.

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.

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 a Form N-470, 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.

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.

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 U.S. waters for more than 29 days.

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.

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.

Outer Continental Shelf (OCS) Employees

a. The Outer Continental Shelf Lands Act Amendments of 1978 (OCSLA) were enacted on September 18, 1978. 43 U.S.C. 1356 of OCSLA directs, that with specified exceptions, all units operating on the Outer Continental Shelf (OCS) must employ only U.S. citizens or lawful permanent resident (LPR) aliens as members of the regular complement of the unit. Subsequently, the U.S. 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.

Other Business Activities Classifiable 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, you may issue B-1 visas to otherwise eligible aliens under the criteria provided below.

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 U.S. 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 U.S. 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.

Foreign Airline Employees

Foreign airline employee aliens who:

(1) Seek to enter the United States for employment with a foreign airline that is engaged in international transportation of passengers and freight;

(2) Are working in an executive, supervisory, or highly technical capacity; and

(3) 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.

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.

Clerkship

Except as in the cases described below, aliens who wish to obtain hands-on clerkship experience are not deemed to fall within B-1 visa classification.

Medical

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 U.S. 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 U.S. 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 U.S. 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.)

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).

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.

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. (See 9 FAM 41.113 PN11.1 for notation to be inserted on any visa issued under this legislation.)

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.

Aliens Employed by Foreign or U.S. 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.

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.

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.

Employees of U.S. Exhibitors

While alien employees of U.S. exhibitors or employers are not eligible for B-1 visas they may be classifiable as H-1 or H-2 temporary workers.

Aliens Normally Classifiable H-1 or H-3

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 U.S. source other than an expense allowance or other reimbursement for expenses incidental to the alien’s temporary stay. For purposes of this Note, 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 under the provisions of INA 101(a)(15)(B), the Department has maintained that where a U.S. 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 “U.S. 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-1in accordance with 9 FAM 41.31 N9.1-5). A nonimmigrant visa petition accompanied by an approved labor certification must be filed on behalf of the alien.

Incidental Expenses or Remuneration

A nonimmigrant in B-1 status may not receive a salary from a U.S. source for services rendered in connection with his or her activities in the United States. A U.S. source, however, may provide the alien with an expense allowance or reimbursement for expenses incidental to the temporary stay. Incidental expenses may not exceed the actual reasonable expenses the alien will incur in traveling to and from the event, together with living expenses the alien reasonably can be expected to incur for meals, lodging, laundry, and other basic services.

Honorarium Payment

INA 212(q) provides that a B-1 nonimmigrant may accept an honorarium payment and associated incidental expenses for usual academic activities (which can include lecturing, guest teaching, or performing in an academic sponsored festival) if:

(1) The activities last no longer than nine days at any single institution or organization;

(2) Payment is offered by an institution or organization described in INA 212(q);

(3) The honorarium is for services conducted for the benefit of the institution or entity; and

(4) The alien has not accepted such payment or expenses from more than five institutions or organizations over the last six months.

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 U.S. based ethnic society. (See 9 FAM 41.31 N13.7 on B-2 visas for amateur performances.)

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, makeup specialists, film crew members coming to the United States to produce films, etc.

Participants in Cultural Programs

A professional entertainer may be classified B-1if the entertainer:

(1) Is coming to the United States to participate only in a cultural program sponsored by the sending country;

(2) Will be performing before a nonpaying audience; and

(3) All expenses, including per diem, will be paid by the member’s government.

Participants in International Competitions

A professional entertainer may be classified B-1if 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.

Still Photographers

The Department of Homeland Security (DHS) permits still photographers to enter the United States with B-1visas for the purpose of taking photographs, provided that they receive no income from a U.S. source.

Musicians

An alien musician may be issued a B-1visa, provided:

(1) The musician is coming to the United States in order to utilize recording facilities for recording purposes only;

(2) The recording will be distributed and sold only outside the United States; and

(3) No public performances will be given.

Medical Doctor

A medical doctor otherwise classifiable H-1 as a member of a profession whose purpose for coming to the United States is to observe U.S. medical practices and consult with colleagues on latest techniques, provided no remuneration is received from a U.S. source and no patient care is involved. Failure to pass the Foreign Medical Graduate Examination (FMGE) is irrelevant in such a case.

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:

(1) The proposed training is not available in the alien’s own country;

(2) 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;

(3) The beneficiary will not engage in productive employment unless such employment is incidental and necessary to the training; and

(4) 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 U.S. 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 you are satisfied that the intended stay in the United States is temporary, and that, in fact, there is a definite time limitation to such training.

Artists

An artist coming to the United States to paint, sculpt, etc. who is not under contract with a U.S. employer and who does not intend to regularly sell such art-work in the United States.