Rules governing issue of B-1 business visitor visa – Part II

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Michael Phulwani is a prominent attorney admitted to practice law in New York, New Jersey and India. He practices immigration and nationality laws and visa matters in the USA and abroad. He is a frequent lecturer on immigration laws and co-hosts several TV and radio programs on immigration. In this column, Phulwani will discuss frequent problems relating to immigration legislation and answer questions from our readers. All questions should be forwarded to Michael Phulwani, 888 Maywood Avenue, Maywood, NJ 07607.

By Michael Phulwani

The B-1 business visitor visa allows businesspersons to enter the United States on relatively short notice. This is the concluding part of the article providing detailed information about this visa category.

Activities of a commercial or professional nature permitted under the B-1 business visitor status include, but are not limited to:

Engaging in commercial transactions (which do not involve gainful employment); Negotiating contracts; Con-sulting with business associates; Litigating; Participating in scientific, educational, professional or business conventions, conferences or seminars; and Undertaking independent research.

Other business activities classifiable as B-1.

While the following categories generally may be classified under another nonimmigrant class (e.g., E, H, F), consular officers may issue B 1 visas for the following classes of visitors as well:

l Commercial or industrial workers 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 US 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 US source;

l In the building or construction industry, only applicants coming to the United States for purposes of supervising or training other workers engaged in building or construction work may be classified as B-1 visitors. Those, who actually perform building or construction work, whether onsite or in-plant, are precluded from admission in B-1 status;

l Applicants coming to the United States merely and exclusively to observe the conduct of business or other professional or vocational activity, provided they pay the expenses for their visit. Consulates and US ports of entry also have become increasing critical of applicants seeking a B-1 visa and/or entry into the United States for purposes of observing the conduct of a business, often questioning whether practical, on-the-job training is a component of the assignment;

l Foreign airline employees working in an executive, supervisory, or highly technical capacity, where there is no applicable E visa treaty;  and

l Certain foreign medical school students pursuing an elective clerkship at a US medical school hospital.

This list is not exhaustive.

B-1 in Lieu of H-1B or H-3.

The B-1 in lieu of H-1B visa category enables foreign nationals employed by a foreign company to engage in temporary professional activities in the United States provided the employee continues to be employed and paid by the foreign employer. The B-1 in lieu of H-3 option allows overseas workers to participate in professional training programs in the United States.

The B-1 in lieu of H-3 applicant must present evidence to the consular officer demonstrating that the training is not available in his or her home country, that the training will benefit his or her career abroad, and that the training neither includes productive employment nor displaces a US worker. The applicant further cannot receive a salary or other remuneration from a US source except for an expense allowance or reimbursement for incidental expenses.

This visa category is appropriate for employees of foreign companies engaged in collaborative efforts with US companies on professional projects of a commercial, scientific, or technical nature for which assistance from experienced foreign employees may be required on a short term basis to carry out important project activities.

The applicant must be able to demonstrate that he or she would otherwise satisfy H-1B visa requirements by virtue of possessing the requisite education credentials or history of employment.

Proving eligibility for the B-1 Visa.

In support of an application for the B 1 visa, the applicant should:

l Have adequate funds available to avoid his or her unlawful employment in the United States;

l If presenting assurances of financial support from sponsoring relatives or friends in the United States, show compelling ties that would lend credence to the sponsor’s undertaking;

l Present specific and realistic plans for the entire period of the contemplated visit;

l Establish with reasonable certainty that the departure from the United States will take place upon completion of the temporary visit. The period of time projected for the visit must be consistent with its stated purpose;

l Demonstrate sufficient ties to his or her home country, such as permanent employment, meaningful business or financial connections, close family ties, or other commitments that indicate a strong inducement to return abroad;

l Show adequate provision for support of any dependents while the applicant is in the United States if the applicant is the family’s principal wage earner.

B-1 Status for workers in the United States.

Although normally excluded from entering the United States to perform skilled or unskilled labor, applicants, who intend to work may be issued B-1 visas and be admitted into the United States in valid B-1 status if they fall into one of the following categories:

l Ministers on evangelical tour, ministers of religion,  who exchange pulpits with American counterparts, members of religious denominations entering the United States temporarily to perform missionary work, and members of charitable organizations, and participants in voluntary service programs;

l Members of boards of directors of US corporations may enter the United States to attend a meeting of the board or to perform other functions derivative of board membership;

l Personal or domestic servants of US citizens residing abroad or temporarily as-signed to the United States;

l Personal or domestic servants of certain aliens in nonimmigrant status;

l Certain yacht crewmen and coasting officers;

l Certain professional athletes;

l Investors seeking an investment in the United States that would qualify them for E-2 nonimmigrant classification, as long as they do not perform productive labor or actively participate in the management of the business prior to
being granted E-2 status;

l Horse racing personnel, such as jockey, sulky driver, trainer, or groomer.

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