Despite the COVID-19 pandemic receding in the rearview mirror, USCIS and consular processing remains heavily backlogged, disrupting U.S. employers’ plans to hire/transfer foreign national talent. A combination of desperation and lack of knowledge may tempt foreign nationals to use the popular, and generally easier to obtain, B-1 temporary business visitor visa to enter the country for purposes that may not be permissible under this visa classification. [1] This strategy can be fraught with pitfalls and risks for the foreign national if they are not prepared for the interview at the consulate or the port-of-entry inspection. 

The B-1 allows foreign nationals to participate in limited business activities of a commercial or professional nature in the United States for a temporary period of up to six months. To be eligible for the B-1 visa, the applicant must demonstrate, among other things, that the purpose of the trip is for business of a legitimate nature, although engaging in work (productive employment) is generally impermissible under the B-1. 

The B-1 is not a workaround to employment-based visa options, which are designed to allow for employment in the United States if the situation permits. However, it can be difficult to qualify for a work authorized visa and it can also be expensive and take considerable time to obtain a work authorized visa. Due to these reasons, the B-1 visa can be prone to abuse (intentionally or not). As such, there are strict limitations to the types of business activities in which a B-1 visa holder may engage, including, but not limited to:

• consulting with business associates;
• traveling for scientific, education, professional, or business conventions, or a conference on specific dates;
• negotiating contracts; or
• participating in short-term training.

B-1 visitors cannot engage in employment with a U.S. employer, nor can they use the B-1 to circumvent the requirement to obtain the proper employment visa. Doing so is in violation of U.S. immigration laws and risk being denied entry into the United States as a result. 

B-1 visa abuse is common and U.S. Customs and Border Patrol takes this seriously. A business visitor can make a misstatement during inspection at a port-of-entry that could lead to a discretionary denial of entry with no immediate recourse, even for individuals utilizing the B-1 in accordance with the law. 

For an uneventful entry into the United States, employers/foreign national employees should consult our immigration team on whether the B-1 temporary visitor visa is the appropriate classification. If so, we can draft a B-1 traveling letter, with supporting materials, to better prepare the foreign national employee for their entry into the United States to reduce unwarranted suspicions and help explain to the border officer the nature of the visit and why the B-1 (or ESTA) classification is appropriate. 

If you have questions about the visa process, please reach out to Radha Desai or the Workplace Solutions lawyer you regularly work with. 

[1] Many foreign nationals who visit the United States may do so using the Visa Waiver Program (ESTA) when qualified to do so. The B-1 visa rules apply to ESTA travelers. 

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.