B-1 Business Visitors

November 09, 2010

One of the more commonly used and misunderstood immigration classifications is the B-1 business visitor. The following is a basic description of this category, along with some pointers for its use.

The Basics

The B-1 visa and B-1 status are appropriate for business visitors to the United States. It is a nonimmigrant status which requires applicants to satisfy the following basic elements.

• Have a residence in a foreign country, which they do not intend to abandon;
• Intend to enter the United States for a period of specifically limited duration; and
• Seek admission for the sole purpose of engaging in legitimate activities related to business.

Business visitors must also not receive pay from a U.S. source, other than in very limited situations such as guest lecturers at universities who may receive honorarium subject to strict requirements. From a practical perspective, aside from business meetings and sales activity, the B-1 classification is useful for conducting activities preliminary to a more long-term status such as that of an E-2 investor or L-1 intracompany transferee.

Permissible “business” activities

As the name implies, the classification is appropriate for business activity. The Department of State has published a laundry list of permissible activities in B-1 status http://www.state.gov/documents/organization/87206.pdf , but suffice it to say that employment is not one of them. In fact, employment is expressly prohibited and determining the dividing line between business and employment is where most business people encounter difficulties.

One of the more common uses for the B-1 classification is for sales activity. Foreign salespersons enter the U.S. to solicit sales but may not conclude the sale or deliver the product while in the U.S. Also, the border interprets this particular classification as not allowing the sale of products which are manufactured in the U.S. In other words, foreign salespeople should not be entering the U.S. to sell U.S. goods, regardless of from where the goods are sold or distributed.

For our Canadian neighbors who do not need a visa to enter in B-1 status, NAFTA provides a bit more detail on what specific business activities are appropriate. The list of activities mirrors the business cycle and includes:

• Research and design.
• Growth, manufacture and production.
• Marketing.
• Sales. (1) Sales representatives and agents taking orders or negotiating contracts for goods or services for an enterprise located in the territory of another Party but not delivering goods or providing services. (2) Buyers purchasing for an enterprise located in the territory of another Party.
• Distribution.
• After-sales service. Installers, repair and maintenance personnel, and supervisors, possessing specialized knowledge essential to the seller's contractual obligation, performing services or training workers to perform services, pursuant to a warranty or other service contract incidental to the sale of commercial or industrial equipment or machinery, including computer software, purchased from an enterprise located outside the United States, during the life of the warranty or service agreement. (For the purposes of this provision, the commercial or industrial equipment or machinery, including computer software, must have been manufactured outside the United States.)

The after-sales service provision can be particularly useful with some advance planning. As a practical pointer, Canadian businesses seeking to perform after-sales service on commercial or industrial equipment should include such a provision in the sales documentation at the time of the sale. The parties to the sale can also designate a third party to perform the after-sales service. This is a simple step that can save a lot of headaches after sale.

Terms of B-1 status

Other than citizens of Canada who do not need visas to enter Maine or other U.S. states, foreign nationals who wish to enter the U.S. as business visitors must first obtain a B-1 visa at a U.S. consulate abroad. Applicants for a visa should be prepared to present documentary evidence of compelling ties to their home country, financial resources to pay for their visit, and possibly an itinerary of what exactly they will be doing in the U.S. It often helps if the applicant can demonstrate that they have traveled to other countries and then return to their home country at the conclusion of their visits. As the B-1 classification is a strictly nonimmigrant classification, consulates are often primarily interested in whether or not the applicant is likely to return home after the visit to the U.S. A pattern of travel and return generally helps in that regard. If issued, a B-1 visa is typically valid for a 10-year period.

Upon presenting for admission at the U.S. border, border officials now authorize entry for a period of stay commensurate with the purpose of the visit. In other words, if your business will take you 3 weeks to conduct, the official at the airport could issue an I-94 card which expires a month from date of entry. It is not unusual for the border to issue I-94 cards valid for 3 or 6 months at a time. Canadian citizens often do not receive I-94 cards and their period of authorized stay is generally 6 months at a time in the absence of such a card.

B-1 business visitors eventually encounter difficulties at the border where their visits to the U.S. become more and more frequent and longer in duration each time. If the B-1 visa holder has spent more time in the U.S. than in their home country over the past 12 months (i.e. it looks like they are essentially living in the U.S.), it is likely that they will be questioned extensively at the border.

Extensions of stay

For business visistors entering the U.S. with B-1 visas, the expiration date on their I-94 card is what governs how long they can legally remain in the U.S., not the expiration date of the visa. While a B-1 visitor may apply for an extension of stay in the U.S. before the expiration of the I-94 card, this is often not a viable option in practice. Although the applicant may file the application to extend status before their current authorized stay expires, the processing times for extension applications often take the applicant past the expiration date of their current I-94. If the application is then denied, the applicant has overstayed the period of authorized stay which can present problems down the road including the fact that the B-1 visa becomes void.

For more information regarding this client alert, please contact Matt Raynes at 207-947-0111.

This alert is provided as general information, and is not a substitute for legal or other professional advice.