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 first part of the article providing detailed information about this visa category.
The Immigration and Nationality Act of 1952 (INA) defines an individual in “B” nonimmigrant classification as:
An alien (other than one coming for the purpose of study or performing skilled or unskilled labor or as a representative of foreign press, radio, film, or other foreign information media coming to engage in such vocations) having a residence in a foreign country, which he has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure.
Visitors for business may use the B-1 visa classification.
B-1 visa applicants must be prepared to clear two separate stages of inquiry. The first stage of inquiry occurs upon application for a visa with the US embassy or consular office. The second stage of inquiry occurs upon inspection for admission at a US port of entry. Officers of US Customs and Border Protection (CBP) inspect and admit arriving persons.
US consular officers must balance two competing mandates when reviewing visa applications: (1) facilitating US policy objectives, which include the promotion of international travel and the free movement of all individuals to the United States for cultural, social, and economic purposes; and (2) serving as the initial gatekeeper to the United States by screening all visa applicants for eligibility with consideration for the general presumption that all applicants are intending immigrants, not mere visitors, as well as the rationale that the requirements of the B-1 visitor classification should protect the US labor force from “business visitors” who actually would perform work in the United States. CBP officers perform a similar function at the ports of entry. They also serve as a check against incorrect or corrupt visa issuance.
Various factors affect a given consulate’s visa issuance policies, such as a high rate of fraud or overstays for a particular nationality, poor economic conditions in the country, and the unreliability of government-issued documents. Moreover, up-to-date information on the status of security advisory opinions (SAOs) currently required for citizens of predominantly Muslim countries is critical, as the processing of such security clearances could significantly impact the timing of visa issuance.
Consulates, such as those located in India, are particularly suspicious that highly educated computer professionals will, in fact, go to work once in the United States and, therefore, require an abundance of evidence to show that the professionals are not intending to work, and that the benefit of their visit will be to a company in India or otherwise abroad. This suspicion is particularly pointed in the absence of H-1B visa quota numbers.
As is true for all visa issuance, the applicant’s prior immigration history is relevant to the consular officer’s decision of whether to grant the requested visa. If an applicant has ever been refused entry into the United States, it is unlikely that he or she will be approved for a B-1 visa. Likewise, if an applicant has spent a great deal of time in the United States in B-1 status, consular officers will likely suggest that the applicant seek a visa authorizing employment. Since the assumption is that the applicant is entering the United States for legal purposes, a visa will obviously be denied when the consular officer knows or has reason to believe that the applicant will engage in unlawful criminal con- duct.
Three basic requirements of the B-1 category
According to the statute, the B-1 visa is suited to the visitor, who has an unabandoned foreign residence; intent to visit only temporarily; and intent to engage only in permitted business activities.
Unabandoned foreign residence
The first requirement for B-1 classification is proof of an unabandoned foreign residence, considered the principal actual dwelling place in fact. The focus of the inquiry should be the applicant’s intent. If, at the conclusion of the contemplated visit, the applicant intends to resume (or establish) a residence abroad, the applicant is eligible for the visa. The residence need not be the exclusive residence of the applicant; it may be shared with another individual. The residence need not be the applicant’s former residence, but instead may be a residence the applicant intends to establish in the future. Where the applicant already owns a residence in the United States, or is the beneficiary of an immigrant petition, the applicant should be able to demonstrate eligibility for the B-1 visa by presenting other evidence indicating the residence abroad is the principal place of abode to which the applicant will return at the end of the temporary visit.
Entry for a temporary period
The second requirement for B-1 classification is proof that the proposed entry is for a temporary period. Before issuing a B-1 visa, the consular officer must be satisfied that the intended stay has a time limitation and is not indefinite. Where the proposed stay is potentially limitless, the B-1 classification is inappropriate. The applicant may prevent such an inference by presenting evidence of specific and realistic plans for the visit, adequate financial resources to carry out the purpose of the visit and to depart, and evidence of meaningful business, family, and other connections that are a strong inducement to depart the United States at the conclusion of a temporary visit. The “mere suspicion” that an applicant may be induced to remain permanently in the United States is, in itself, insufficient to warrant visa refusal if the applicant’s present intent is to return to a foreign residence.
Permitted business activities
The third and perhaps most contentious requirement of B-1 classification is proof that the proposed temporary visit is solely for purposes of engaging in permitted business activities. B-1 business visitors may be admitted for the purpose of engaging in business, but not for the purpose of local employment or labor for hire. The contentiousness stems from the occasional difficulty in distinguishing between permissible business activities and impermissible labor or employment. The regulations instruct that the primary focus should be whether the principal place of business and actual accrual of profits are in the foreign country.
To be concluded..