Short-term business travelers aren’t always top of mind for those working in the HR, immigration and global mobility functions, but they should be, according to experts.
Global business travel is increasing and it’s a common and costly mistake to assume that a B-1 business visa is sufficient for every business trip, said Justin Storch, manager of agency liaison at the Council for Global Immigration.
“Just because it looks like a business trip and sounds like a business trip, that doesn’t mean the U.S. government will consider it a business trip,” said Storch. “So it’s important to know the rules thoroughly, as enforcement is increasing with regard to B-1s.”
Specifically, it’s important for the client company to ensure that foreign national workers assigned to the company are working with appropriate visas. If a software engineer is asked to attend meetings in the United States but then actually provides in-house tech support, for example, there is potential for criminal liability.
The B-1 visa rules aren’t always clear, however. In fact, ambiguity in the rules got Indian technology giant Infosys in hot water with the U.S. government in 2011, leading, in October 2013, to the largest penalties ever levied in an immigration case.
Even the lead prosecutor in that case, Shamoil Shipchandler, called the B-1 rules murky. He also told the Wall Street Journal, “It’s not 100 percent clear what someone who holds a B-1 visa can actually do.”
What Is a Business Visa?
The B-1 business visa is a nonimmigrant visa meant for those who would like to enter the U.S. for short-term business-related reasons without providing actual labor or receiving payment from a U.S. source.
Business visits typically last less than 90 days but technically can last up to one year, including an initial period of stay of six months and a six-month extension.
“But as a general rule, it’s the activities to be performed, and not the duration of the trip or even the purpose of the trip, that dictate whether the B-1 is appropriate,” said Sandra Sheridan, a partner with Fragomen, based in Phoenix. “You are not allowed to work with this visa, and it’s knowing that dividing line between what’s an appropriate business visit as opposed to when that visit crosses the line and becomes work that’s tricky.”
Permissible Business Activities
Consultative activities, such as participating in meetings, are the “classic permissible activity for B visas,” said Sheridan. Other permitted activities, as long as business visa holders do not receive income or salary from the U.S. business entity, include:
- Attending or presenting at conferences, trade shows or business events.
- Soliciting services or sales.
- Finalizing or negotiating contracts.
- Settling an estate.
- Interviewing or hiring staff.
- Making investments.
- Speaking or lecturing.
- Short-term training.
The concept of training is a sticky topic, said Sheridan. “Training can be constituted as multiple types of activities—face-to-face meetings, classroom seminars, on-the-job training—making it complex to perform a legal analysis because it’s necessary to understand what activities comprise the training to determine what the right visa is.”
No U.S. visa mirrors exactly how most organizations train their employees, she said. Visas appropriate for training can range from B-1s to J-1s and H-3s, all to way to work visas such as Ls or Hs.
“The State Department wants to make sure that participating in a training program is not designed to provide employment to that individual but ultimately is training them in some skill that they don’t possess,” she said. Sheridan reiterated that trainees cannot receive income, only an expense allowance or reimbursement for their stay.
Productive employment “is the big one,” said Storch, referring to activities prohibited under B visas. “The U.S. entity cannot be the primary beneficiary of the business visit. This is where companies really get into trouble. You need to monitor your business travelers and make sure that your B visitors are not doing any work for the U.S. entity.”
Other prohibited activities include:
- Attending school or studying.
- Working in any information media.
- Performing for pay or before a paying audience.
- Seeking permanent residence in the U.S.
‘B in Lieu of H’
It is possible, under limited circumstances, to receive an employment-authorized B-1 visa to do short-term work in the U.S. that would normally be considered appropriate for an H-1B visa. This is the “B in lieu of H” scenario.
“If you choose to use B in lieu of H, you need to be very careful,” said Storch. “It’s such a risky visa that many employers decide not to use it at all.” He recommends using it “as your last resort, when no other options are available.”
If B in lieu of H is used, the foreign national must meet the following criteria:
- Receive no salary or remuneration from a U.S. source, other than an expense allowance or expense reimbursements incidental to the traveler’s stay.
- Be employed and paid by a foreign firm with an office and payroll disbursal outside the U.S.
HR professionals and others responsible for arranging travel on a B visa should consider these best practices:
Keep the trip short. “The longer the trip is, the more it may come under scrutiny by immigration officials that the activities are not business-visitor appropriate,” said Sheridan.
Plan and file early. “If you know well in advance that the trip is coming, it’s really important to get that application in to the consulate in case there’s a [security clearance delay] or a visa denial,” she said. If it’s done early enough, you have time to try again before the travel date.
Establish clear guidelines. “You need to be mindful about your specific business, as to what activities are permissible for business travel,” Sheridan said. She advised educating business managers about the different travel profiles for the company’s various businesses.
Prepare applicants for the consular visit and immigration interview. Consular officers see about 120 to 140 people a day. Typically, B-1 visa applicants have about three minutes with the officer at a consulate or port of entry, said Sheridan.
“Applicants should be well-prepared to talk about what they’re going to be doing in the U.S.,” said Claire Sala Ayer, director for international staff, scholars and students at Partners HealthCare, based in Boston. “They should be prepared for the kinds of questions that will be asked and must appear credible.” It’s not useful to be loaded down with paperwork that explains the reasons for the visit. The officer wants to hear from the applicant in their own words, she said.
“Sometimes, the biggest problem is that the employee is intimidated entering a consulate or being interviewed by an immigration officer, so the more they know about what to expect, you can dispel that anxiety and put them in the right frame of mind to be successful,” said Sheridan.
Ayer suggested having the local office staff visit the airport inspection area: “It’s a great opportunity to make connections at the airport, get to know the examiners and understand what they do.”
Foreign nationals should not be coached to give canned speeches, Ayer advised.
They need to be prepared to answer the following questions:
- Who am I? This includes biographical information, ties to the home country, how often they travel.
- Why am I traveling?
- Who is paying for it?
- What am I doing afterward?
While organizations’ reasons for business travel will differ, education and communication are essential to any approach, said Storch. HR and immigration professionals need to educate their workforce about business travel and ensure that everyone in the organization communicates when and where they plan on traveling abroad for business purposes. “This is the essential information you need if the government comes knocking,” he said.
Roy Maurer is an online editor/manager for SHRM.
Follow him at @SHRMRoy
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