34 Million Reasons to Evaluate Company's Business Visitors
Millions of people enter our country each year as visitors. Whether entering on business (B-1) or as tourists (B-2), the requirements are basically the same. Many visitors enter the United States under our Visa Waiver Program, which allows foreign nationals from certain countries to enter the U.S. without the formalities of obtaining a visa for periods of up to 90 days on each entry. Most foreign nationals, however, must be approved for a formal B-1/B-2 visa stamp from a U.S. Embassy or Consulate abroad prior to seeking entry into the country. Upon entry, those applicants are permitted to stay here for up to six months and potentially qualify for extensions of stay. While these are the upward limits on stay, the U.S. ports of entry typically will limit visitors only for the duration necessary of each particular trip. Foreign-based employees and U.S. businesses alike find the visitor program attractive due to quick access and minimal fees, but must be wary of what constitutes legitimate business activity and the potential for abuse.
Generally, business visitors are permitted to engage in business activities as long as they are seeking entry for a limited duration, intend to return to their residence abroad upon conclusion of a visit to the United States, have adequate financial resources for travel to and departure from the United States and engage solely in legitimate activities while present here. Business visitors are not permitted to work or engage in any hands-on, productive business activities whether as an employee or independent contractor. Among a number of legitimate activities, business visitors may attend business meetings, conventions and conferences; consult with U.S. business associates; and even procure goods, solicit sales and negotiate and follow-up on contracts, as long as the subsequent work will be completed outside of the United States. Typically, the penalty for abuse of the visitor program results in a warning or denial of the visitor's admission at the border (and an immediate return trip home). Recently, the firm, Infosys, a large information technology consulting company, encountered a dramatically different result.
In October 2013, Infosys agreed to pay $34 million in a civil settlement after federal prosecutors accused them of using the B-1 visitor program to circumvent the more onerous working condition and other requirements of the H-1B visa program which is also capped annually at 65,000. The government also alleged violations related to proper completion and maintenance of I-9 records in violation of the Immigration Reform and Control Act of 1986. Immigration and Customs Enforcement (ICE) has confirmed this is the largest payment made in an immigration case. Initiated through an employee's whistle-blower action and inquiry by Senate Judiciary Committee ranking member Charles Grassley, prosecutors alleged that Infosys generated "invitation letters" that were misleading to U.S. Consular Officials and other immigration officials in support of their B-1 visa applications. Foreign nationals also were allegedly provided with a "Do's and Don'ts" memorandum specifically directing them to avoid certain terminology when describing the intended activities in the United States and encouraging them to provide inaccurate final destinations. Prosecutors also claim that Infosys revised contracts to conceal the fact that they were utilizing B-1 visa holders to perform jobs that skilled and unskilled labor were otherwise required to perform in the United States. Infosys has denied all allegations of civil or criminal wrongdoing and/or liability and has agreed to a $34 million settlement with Homeland Security Investigations, Department of State and the U.S. Attorney's Office for the Eastern District of Texas.
This settlement underscores the importance of regularly reviewing the activities of business visitors and exploring the appropriateness of the visitor category as compared to alternative employment authorized visa categories, such as the H-1B, TN, L-1 or training visas. This requires a case-by-case and fact-specific analysis of the frequency and duration of historical and proposed travel, the precise nature and purpose of the travel and consideration of current and future business needs.
For more information regarding the appropriate use of the business visitor category and / or alternative visa options, please contact Jenifer M. Brown
or another member of the firm's immigration practice
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.