The Limits of “Visiting” the US on a B Visa or VWP (ESTA)
Nationals of many countries can visit the US without a visa, and for nationals of other countries, visitor visas are easy to get in comparison to immigrant and non-immigrant work visas. It is important to be aware of the limitations of these statuses when planning a business-related stay in the US.
Basic PrinciplesThere is not always a clear line between what a person can and cannot do with business visitor status, either through a B visa or through the VWP. The “textbook” case on this topic is Matter of Hira, a Board of Immigration Appeals decision from 1966, which allowed business visitor status for an Indian tailor resident in Hong Kong who visited the United States to take orders and measurements from customers for clothing manufactured in Hong Kong. Matter of Hira established the following principles:
(1) Visitors’ residence, domicile, and principal place of business must remain outside the United States.
(2) Visitors are not allowed to perform skilled or unskilled “labor” while in the United States. This specifically means that the “actual place of eventual accrual of profits” must be outside the United States. Thus manufacturing or providing paid services in the United States would not be allowed under business visitor status.
(3) There is no requirement for business visitors to be “considered as ‘businessmen’ or even skilled.”
Examples of Permitted ActivitiesThe Foreign Affairs Manual, which guides US consular officials on visa decisions, lists the following as categorically permitted activities for business visitors:
(1) Engaging 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) Negotiating contracts.
(3) Consulting with business associates.
(5) Participating in scientific, educational, professional, or business conventions, conferences, or seminars.
(6) Undertaking independent research.
(7) 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. (However, “actively participating in the management of the business while in the United States in B status” is prohibited.)
Business visitor status is also allowed, in limited and defined cases, for:
(1) Professional athletes.
(2) Offshore vessel/rig workers.
(3) Personal employees and domestic workers.
(4) Crew members of aircraft and yachts.
(5) Medical clerks.
(7) Musicians intending to record in a US studio (performance requires a different type of visa).
Hands-On WorkDue to the restrictions on performing “labor,” business visitors who will perform “hands-on work” of a technical nature must be especially cautious about violating visitor status.
For example, due to concerns about potentially displacing American construction workers from jobs, a business visitor who will visit a construction work site should be prepared to explain that they will not perform any hands-on construction work, but will only observe the site, have discussions with local workers, and conduct other “hands-off” activities.
A business visitor can perform hands-on work on machinery or equipment only if the work is under warranty and the machinery or equipment was purchased from a company located outside the US.
Immigrant IntentA visitor can be denied a visa or entry if they are determined to have “immigrant intent.” This most commonly happens in the following cases:
(1) The visitor has a pending visa petition in the US. Visa petitions can take months to process; some immigrant visa petitions take many years. It is permissible for a petitioner to visit the US while they are waiting for an immigrant or non-immigrant visa, but the purpose of their visit will be more closely scrutinized, especially if they are close to receiving an immigrant visa (in which case they may only be allowed to visit the US in case of an emergency, and may otherwise be directed to wait for their immigrant visa).
(2) The visitor has family members who are US citizens or residents. In this case, US authorities may assume that the visitor will overstay unless the purpose of the trip and the visitor’s ties to their home country are adequately explained.