Denial of B-1 Status for Impermissible Activities
Foreign nationals often find themselves perplexed at a sudden denial of a B-1 business visitor visa at the U.S. Consulate or being denied entry into the U.S. as a B-1 business visitor at a U.S. Port of Entry. This is because they may intend to, or may have previously, exceeded the scope of the B-1 permissible activities.
For example, a Canadian citizen (visa-exempt) who appears at the Port of Entry to enter the U.S. for a 2 week unpaid internship may be refused entry because the scope of their internship exceeds permissible B-1 activities. In this situation, CBP may flag the individual in their system. If the individual attempts to reapply for admission at another Port of Entry (this time just to visit friends/family in the U.S.), they may be sent to secondary inspection for a detailed inspection. Should CBP have reason to believe that the individual is being deceitful during this inspection and is simply trying to circumvent the previous denial, CBP could issue an expedited removal order or charge them as being inadmissible forfraud/misrepresentation - all of which have severe consequences on the individual's ability to re-enter the U.S. in the future.
Because of the complexity of the B-1 business visitor visa/status, and the wide variety of permissible B-1 activities, and the possibility of being denied admission to the U.S. (or worse), it is crucial that clients understand what business activities are permissible B-1 business visitor activities.
For most foreign nationals, the first hurdle they need to pass in order to enter the U.S. as a business visitor is to obtain a B-1 visa from the U.S. Consulate in their home country. After being issued their B-1 visa, the second hurdle for the foreign national to overcome is to establish to the satisfaction of CBP that the foreign national is seeking to enter the U.S. to engage in permissible B-1 business activities.
Canadian citizens, since they are visa-exempt, can simply present themselves at a Port of Entry for inspection and admission into the U.S. in B-1 status. Again, they must also be able to demonstrate to CBP that their proposed activities fall within the scope of permissible B-1 business activities.
The Proper Utilization of the Business Visitor (B-1) Category
Generally, the B-1 category is available to consult with business associates, travel to attend a scientific, educational, professional or business convention, or conference on specific dates, settle an estate, or negotiate a contract, etc. Additional information about business related (B-1) visitor visas can be found at the Business Travel to the United States – What Type of U.S. Visa Will You Need. One of the key requirements to this category is that the B-1 business visitor not be paid from a U.S. source for their activities while in the U.S. on B-1 status.
Foreign nationals should be classified B-1 business visitors for business if they are traveling to the United States for the following reasons:
- Engage in commercial transactions, which do not involve gainful employment in the U.S;
- Negotiate contracts;
- Litigate;
- Participate in scientific, educational, profession, or business conventions, conferences, or seminars;
- Undertake independent research;
- Ministers on Evangelical Tour;
- Ministers of Religion Exchanging Pulpits;
- Participants in Voluntary Service Programs;
- members of Board of Directors for a U.S. Corporation;
- Personal/Domestic Employees of U.S. Citizens Residing Abroad;
- Personal/Domestic Employees of U.S. Citizens on Temporary Assignment in U.S;
- Personal Employees of Foreign Nationals in Nonimmigrant Status;
- Personal Employees/Domestics of Lawful Permanent Residents (LPRs);
- Professional Athletes;
- Yacht Crewman;
- Coasting Officers;
- Investor Seeking Investment in U.S.;
- Horse Races;
- Outer Continental Shelf (OCS) Employees;
- Commercial or Industrial Workers;
- Foreign Airline Employees;
- Clerkship;
- Participants in Foreign Assistance Act Program;
- Peace Corps Volunteer Trainers;
- Internship with United Nations Institute for Training and Research (UNITAR);
- Foreign Government Officials;
- Employees of Foreign Exhibitors; and
- Certain Entertainers;
(An in-depth look into permissible B-1 visa activities can be found at the U.S. Department Of State Foreign Affairs Manual).
Attractiveness of the B-1 Category
If the proposed business activities in the U.S. are permissible for B-1 purposes, B-1 status provides for an increased amount of flexibility (less processing times, etc.) and cost savings (less government fees) for those individuals seeking to enter the U.S. for temporary business purposes.
For example, a foreign employer who wants to send a foreign employee to the U.S. solely to receive pre-requisite training for the foreign position may be able to utilize the B-1 (in lieu of H-3) category to have the employee enter the U.S. to complete the training, subject to other eligibility requirements. For our clients in these situations, our firm assists the foreign employee through the visa application process at the Consulate (if applicable) as well as preparing a detailed packet for presentation to CBP outlining the foreign employees ability to enter the U.S. in B-1 (in lieu of H-3) status.
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