B-1 Business Visitor Visa

B-1 Visa Business travelers may enter the United States using a B-1 Business Visitor Visa. Typically these visas are issued as joint B-1 Business Visitor Visa and B-2 Tourist Visa. This practice means that, if a foreign national has an old B-1/B-2 visa originally issued for tourism purposes, it may be valid for a planned business trip as well.

Some foreign nationals do not require a B-1 Business Visitor Visa or a B-2 Tourist Visa to enter the United States for business purposes. The Visa Waiver Program (VWP) permits citizens of certain countries to travel to the United States for business or tourism for stays of up to 90 days without a visa. Those foreign nationals must apply online using ESTA (Electronic System for Travel Authorization) to avoid the necessity of applying for a B-1 or B-2 Visitor Visa at the US Embassy or Consulate in person.

List of Visa Waiver Program designated countries: https://travel.state.gov/content/travel/en/us-visas/tourism-visit/visa-waiver-program.html

While in the United States as a business visitor, a foreign national may:

  • Conduct Negotiations
  • Solicit sales or investment
  • Discuss planned investment or purchases
  • Make investments or purchases
  • Attend Meetings, and participate in them fully
  • Interview and hire staff
  • Conduct research

Obviously there is a considerable gray area in between what definitely is allowed and what definitely isn't. It is advisable to err on the side of caution when bringing foreign nationals into the USA on business visitor visas.

Those entering on B-1 Business Visitor Visas will generally be granted 6 months admission on entry. It may be possible to obtain a six-month extension to the visitor status as long as the foreign national will be maintaining visitor status, and there are good reasons to do so. It is sometimes possible to change status to another longer-term visa whilst in the United States as a visitor, as long as the foreign national advised the relevant US Embassy or Consulate of this possibility beforehand, or there was no pre-conceived intent to do so.

The following special categories of business travelers are allowed to enter the United States with a B-1 Business Visitor Visa or ESTA with some limitations: Ministers of Religion and Missionaries, Participants in Voluntary Service Programs, Members of Board of Directors of a United States Corporation, Professional Athletes, Yacht Crewmen, Coasting Officers, Investor Seeking Investment in the United States, Equestrian Sports, Outer Continental Shelf (OCS), Personal Employees/Domestic Workers, Commercial or Industrial Workers, Foreign Airline Employees, Clerkship, Participants in Foreign Assistance Act Program, Peace Corps Volunteer Trainers, Foreign Nationals involved in International Fairs and Expositions, Foreign Nationals normally Classifiable H-1 or H-3, Entertainers and Artists.

We will cover below two of those special categories:

B-1 Business Visitor Visa in lieu of H-1B Specialty Occupation Visa

While the B-1 visa by itself does not permit “productive work” (essentially, performing day-to-day work activities) while in the UNITED STATES, the B-1 in lieu of H-1B  may be used by an employee of a foreign company to temporarily work in the UNITED STATES in a position that would ordinarily qualify for an H1-B. In these cases, the B-1 visa is annotated to read “B-1 in lieu of H, per 9 FAM 402.2-5(F).” This may be a useful option for foreign employers who do not have a UNITED STATES based affiliate that can file H1-B petitions, as well as employers seeking to avoid the administrative difficulty and costs associated with an H1-B petition, where the short-term nature of the project would make an H1-B filing untenable.

The B-1 in lieu of H-1B is appropriate for short-term work projects for skilled workers. The foreign national’s salary or remuneration for services performed in the UNITED STATES cannot come from a United States company, and must be paid by a foreign entity abroad. A United States source, however, may provide the foreign worker with an expense allowance or reimbursement for expenses related to the temporary stay.

It should be noted that the B-1 in lieu of H-1 visa is appropriate for short term projects only, and is not intended to be a replacement for an H1-B. The employee should not work in the UNITED STATES for extended periods. Furthermore, this visa classification is difficult to obtain and may be more difficult to obtain from certain consulates (for example, these applications are rarely approved by United States consulates in India). Lastly, this visa is limited to employment that would qualify for an H1-B Specialty Occupation Visa (namely, the position requires a bachelor’s degree), and cannot be used for all types of employment.

B-1 Business Visitor Visa for Commercial and/or Industrial Workers

The B-1 Business Visitor Visa for Commercial and Industrial Workers grants usually multiple entries for short-term work needed in the US. The work must be based on an agreement between a US company and a foreign company.

This visa allows a foreign company to place one or more of their employees at a United States location briefly, for the purpose of installing, servicing, or repairing “[…] commercial or industrial equipment or machinery purchased from a company outside the United States or to train UNITED STATES workers to perform such services” . The foreign national’s salary must be paid by the foreign company.  The Department of State Foreign Affairs Manual explains that “[…] the contract of sale must specifically require the seller to provide such services or training and the visa applicant must possess unique knowledge that is essential to the seller’s contractual obligation to perform the services or training and must receive no remuneration from a UNITED STATES source”.

Travel to give birth in the United States

Traveling to the U.S. with the only intention to give birth with a B visa or ESTA is prohibited.  Visiting temporarily for pleasure does not include travel for the primary purpose of obtaining U.S. citizenship for a child by giving birth in the United States.  Any B nonimmigrant visa foreign national who the Consular Officer has reason to believe will give birth during her/his stay in the United States is presumed to be traveling for the primary purpose of obtaining U.S. citizenship for the child.  The foreign national can overcome this presumption if the consular officer finds that the primary purpose of travel is not obtaining U.S. citizenship for a child. 

The Consular Officer must determine whether there is a reason to believe a B nonimmigrant visa foreign national will travel for the primary purpose of giving birth in the United States.  The Consular Officer may have reason to believe an foreign national will give birth because they indicate that purpose of travel in the DS-160 application form or during the visa interview.  For example, a B-2 nonimmigrant visa foreign national has the option of specifying “Tourism/ Medical Treatment” as the purpose of trip to the United States on the DS-160.  If the Consular Officer have reason to believe the foreign national will give birth in the United States during the foreign national’s intended stay, the Consular Officer should continue to evaluate the credibility of the foreign national’s claimed purpose of travel by asking all necessary questions.  However, the Consular Officer must not ask a visa foreign national whether the foreign national is pregnant unless the Consular Officer has a specific articulable reason to believe the foreign national may be pregnant and planning to give birth in the United States. The Consular Officer must not, as a matter of course, ask all female foreign nationals (or any specific sub-sets of foreign nationals) whether they are pregnant or intend to become pregnant; the Consular Officer also may not require B nonimmigrant visa foreign nationals to provide evidence that they are not pregnant. 

The Consular Officer should assess only the foreign national’s current purpose of travel and must not factor in the possibility that the foreign national may become pregnant at some future date, if the foreign national is otherwise eligible and satisfies you that they have a legitimate purpose for travel.  The Consular Officer should not limit the validity period of a visa for an otherwise qualified B nonimmigrant visa foreign national, as reflected in the reciprocity schedule, solely because the foreign national is pregnant or may become pregnant in the future.

If the Consular Officer has reason to believe the foreign national will give birth during their stay in the United States, the Consular Officer is required to presume that giving birth for the purpose of obtaining U.S. citizenship is the foreign national’s primary purpose of travel.  This presumption is rebuttable, meaning the foreign national can overcome the presumption that they are traveling for the primary purpose of obtaining U.S. citizenship for the child if you determine that the foreign national has established, to the Consular Officer’s satisfaction, a different and permissible primary purpose of travel.  For example, a foreign national might overcome the presumption if they have a medically complicated pregnancy and have arranged for specialized medical care in the United States, because such specialized care is not available in or near the country where the foreign national resides.  In such a case, the Consular Officer may conclude the foreign national’s primary purpose of travel is for specialized medical care, as opposed to seeking U.S. citizenship for the child.

Medical care is not the only way the presumption can be rebutted.  For example, if a B nonimmigrant visa foreign national’s primary purpose for travel to the United States is to visit a dying family member, and during the visit the foreign national may give birth in the United States because the pregnancy due date overlaps with the family member’s last expected months of life, the foreign national may be able to rebut the presumption.  In such a case, the foreign national must satisfy the Consular Officer that the primary purpose is to visit a dying relative rather than to obtain U.S. citizenship for a child.  Similarly, a foreign national for a B nonimmigrant visa who you conclude does not intend to, and will not, give birth in the United States, or who otherwise rebuts the presumption that they intend to travel to the United States primarily to obtain U.S. citizenship for a child, must not be refused solely because the foreign national is or intends to become pregnant.

The fact that a foreign national has an arranged birth plan with a doctor or medical facility in the United States, or simply expresses a preference to give birth in the United States over other locations, is not sufficient to rebut the presumption that their primary purpose of travel is obtaining U.S. citizenship for the child.  One key factor you should consider is whether the foreign national has access to reasonable medical care in or near the country where the foreign national resides.