Jewish Journal

At What Point Does a B-1 Visa Border on H-1B Activities?

by Cedric M. Shen

August 9, 2011 | 2:25 pm

As discussed in previous posts, a citizen of a foreign country who wishes to enter the United States must first obtain an appropriate visa. The most common visa for visitors is the B visa. This applies to people entering the United States temporarily for business (B-1), or for pleasure or medical treatment (B-2). B-1 visas allow foreign nationals coming to the U.S. to engage in business.  Examples including traveling to the U.S. to consult with business associates; to attend a scientific, educational, professional or business convention; to settle an estate; or to negotiate a contract.  The best way to think about it is that you can come to the U.S. to conduct business, but you should not be employed by a U.S. employer, or take a wage/salary while you are down here.

A lot of foreign nationals come to the United States to conduct business, but not necessarily to engage in active employment by a United States employer. In these instances, the foreign employer may send its employee to the United States for a few days or up to six months for short assignments. The problem with doing this is that several business-related trips to the United States on a B-1 visa may cause the USCIS to believe that the foreign national should be on an H-1B visa instead.

The H-1B visa is issued to foreign nationals seeking temporary work in a “specialty occupation,” which requires the skills of a professional. Generally, these are occupations that require at least a bachelor’s degree or its equivalent, such as accountants, computer analysts, web programmers, web designers, engineers or financial analysts. The H-1B visa is costlier to obtain than a B-1 visa.  Filing fees are at least $1,500.00, excluding attorney’s fees.  Moreover, it requires a United States employer to pay the foreign national a certain salary, and it generally takes at least two or three months to be granted a visa.

If a USCIS officer suspects that a foreign national should be on an H-1B visa, the B-1 visa may be cancelled and entry denied. This has become more frequent in light of an increase in the misuse of such visas by people attempting to circumvent the need for more expensive visas. United States Senator Charles Grassley spoke on the issue of abusing B-1 visas in lieu of H-1B visas, stating: “There is an option to use the B-1 or business traveller visa in lieu of the H-1B work permit in some cases.”

On balance, it is certainly permissible for a foreign national to enter the United States in order to conduct business, negotiate contracts and the like. However, one needs to be cognizant of the fact that the prolonged or sustained engagement of such activity within the United States may affect the foreign national’s chances of being re-admitted to the United States later on. To reduce this likelihood, try to keep the visits and the business affairs short and ensure that you are not being compensated by a United States employer.

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Cedric M. Shen is a Los Angeles-based immigration attorney experienced in helping foreign nationals enter the United States. His law practice focuses on employment-based green...

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