To B or Not to B

Over the course of the summer a couple of new clients presented with a similar issue – one had previously entered the country in B-1 status, stayed for 6 months and since leaving had been denied an L-1 visa because the Consular Officer suspected that she had violated the terms of her B-1 visa; and the other was waiting abroad for a non-immigrant visa and considering entering the country on a B-1 visa in the interim because of the delay in processing his underlying petition. Both cases reminded me of how easy it was to use and abuse the lowly B-1 visa and how severe the potential repercussions can be.

A B-1 visa is a temporary non-immigrant visa intended to allow an individual to enter the country to conduct business on a temporary basis.  A full list of activities that are appropriate for a B-1 visa is found in Chapter 9 of the Foreign Affairs Manual and includes the following:

  • attending, lecturing or speaking at a conference
  • undertaking independent research
  • participating in a training program
  • negotiating contracts
  • consulting with business associates
  • attending Board of Directors meetings of a US corporation
  • seeking investment for a business venture

Sometimes it is easier to define what is NOT  allowed on a B visa, namely, “the performance of skilled or unskilled labor”.  Thus, the regulations specifically prohibit employment on a B visa.  However, there can be a fine line between activities that constitute appropriate business activities and those that are not appropriate on a B visa.  When in doubt, I strongly advise seeking legal counsel to avoid unintentionally violating the terms of your visa.  The consequences of even an innocent violation can be quite severe.  For example, when arriving at the US point of entry the Customs and Border Patrol officer will routinely question individuals about the purpose of their visit to the US. If the officer suspects that you intend to engage in activities that cross the line into skilled labor territory, they have the right to deny you entry and possibly even seek your expedited removal from the US.

There is no specific limit on how long you can  be in the US  on a B-1 visa, but the length of time must be consistent with the purpose of your visit.  This often poses a trap for the unsuspecting.  Typically a B-1 visa holder is given an I-94 (the white card that is stapled to your passport) that permits him/her to remain in the US for up to 6 months.  In my experience, however, it is the rare business purpose that can justify a visit for that long.  And so it was that the first client referred to above found her way to me this summer after having been denied an L-1 visa after she had previously spent 6 months in the US on a B-1 visa, conducting business with the same company that was now sponsoring her for the L-1.  I was not counsel on this case when the client first entered on the B-1 visa.  When I asked why a B-1 had ever been used for such a long stay the client explained that the previous attorney had advised him  it was much easier to get a B-1 and as long as the Beneficiary left before the status expired there would not be a problem.  Not so.  When she went for her interview at the Consul for her L-1 visa the Officer grilled the Beneficiary extensively on what she had done during her 6 months in the US and concluded that she had engaged in activities that were inconsistent with her status.  For this reason he denied the L-1. The lesson here is that although a B-1 visa might have been initially cheaper and easier to obtain than an H or L, these gains can be be short-lived. It is my intention to refile this case and include extensive documentation to prove that the Beneficiary did not engage in any unlawful employment during her B-1 stay.  It goes without saying, however, that the bar is much higher once an application has already been denied.

In the second case, the client had applied for an R-1 visa abroad and the US institution that was to employ him was getting increasingly concerned at the delay – new rules promulgated after we had already applied significantly increased the wait-time for R visas.   With much hesitation I agreed that the Beneficiary could enter the US on a B visa and that we would apply for a change of status to an H-1B visa shortly thereafter.  Obviously the  Beneficiary could not start working until a change of status was approved.  Nevertheless, I was concerned that USCIS might deny the subsequent H-1B petition on the grounds that at the time of entry to the US the Beneficiary had already formed the intent to apply for an H-1B visa, thereby violating the terms of the B-1.   I instructed the Beneficiary to be completely upfront with the CBP officer upon arrival and disclose all the facts of the case including the pending R visa application.  As it turned out he breezed through passport control without any questions.  When we filed the H-1B petition a week or so later it was with full disclosure.  We included the receipt notice from the R-1 visa and explained that the delay had caused the change in plans and that although the Beneficiary had no intentions of working until the H-1B was approved,  circumstances had made it impossible for him to continue waiting abroad.  Naturally we were very grateful when the H-1B was granted in short order and a change of status approved, thereby avoiding the necessity to return home and obtain the new visa.

Both cases served as a reminder to me of the pitfalls of taking the B-1 visa for granted.  If you are considering bringing in a professional from abroad or you, yourself need to conduct business in the US, please contact me to confirm that a B-1 is the appropriate visa.  It might save you time and money in the long-term.

Click here to contact Westchester Immigration Attorney Karyn Schiller

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