B1 Visa

B-1 temporary business visitor visas are intended for foreign nationals travelling to the United States to conduct business, not to perform skilled or unskilled labour.

To be eligible for a B-1 business visitor visa, the applicant must demonstrate to a consular officer that he or she intends to depart the United States at the expiration of B-1 status and that he or she will be able to enter a foreign country when he or she departs. Furthermore, the applicant must demonstrate that he or she will be financially able to carry out the purpose of the business visit. Consular officers are required to deny a B-1 visa application if the evidence provided by the applicant does not satisfy the statutory requirements to issue a B-1 visa.

Business is defined by regulations applicable to B-1 visas as including “conventions, conferences, consultations, and other legitimate activities of a commercial or professional nature”. Business, in the regulatory sense for B-1 visas, excludes local employment and labour for hire. The regulations explicitly allow B-1 business visitors to supervise or provide training at construction sites provided they are otherwise qualified for B-1 status.

B-1 business visitors may not be admitted to the United States for more than one year. However, they may be granted extensions of temporary stay in increments not exceeding six months each.

The B-1 visa covers a variety of reasons for travel to the United States, which include but are not limited to:

• conducting business, such as negotiating a contract or attending business meetings

• attending a conference relevant to a profession, education, or current business endeavour

• settling a relative’s estate

• attending or taking part in events, such as concerts or classes, as long as there is no payment or credit given to the attendee.

As stated by the United States Department of State, you cannot travel under this visa to engage in any of the following activities:

• study

• long-term employment by a United States firm

• paid performances or any professional performance before a paying audience

• arrival as a crewmember on a ship or aircraft

• work as foreign press in radio, film, or print journalism or other information media

• permanent residence in the United States.

This visa allows for multiple entries into the United States. However, holders of a B-1 visa do not have permanent resident status — it is a temporary visa — but the holder may apply for a green card.

While the statutes, case law, and agency guidance help explain which business activities are permissible under B-1 business visitor visas, B-1 business visitors should always err on the side of caution and not engage in actions beyond those for which they were explicitly granted a B-1 visa. Therefore, businesses associating with B-1 business visitors or any other foreign nationals who lack employment authorisation should ensure that all of their actions are clearly in line with what is permitted by statutes, regulatory instructions, and current immigration agency policies. This is because the laws, regulations, and agency guidance covering the employment of foreign nationals unauthorised to work in the United States apply to immigration law in general, not just those on B-1 visa status.

B2 Visa

To be eligible for a B-2 visa, the applicant must prove that the travel is temporary and they have the ability to self-fund all costs of the trip. Additionally, they must prove that they have no intent of remaining in the United States beyond their stay and abandoning a residence outside of the United States.

The B-2 visa is for temporary visitors, for pleasure. There are limited activities that a B-2 visa holder may engage in lawfully. Pleasure is defined in Department of State regulations as “[referring] to legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment, and activities of a fraternal, social, or service nature”.

The Foreign Affairs Manual explains the list of permissible activities that an alien may engage in while holding B-2 status:

1. Tourism or family visits — travelling to the United States for tourism purposes or to make social visits to relative(s) or friend(s)

2. Medical reasons — travelling to the United States for health purposes

3. Participation in social events — participating in meetings, such as conventions, conferences, or convocations of fraternal, social, or service organisations

4. Armed forces dependents — travelling as the dependent of an alien member of any branch of the United States Armed Forces temporarily assigned for duty in the United States

5. Dependents of crewpersons — travelling as the dependent of a category D visa crewperson solely for the purpose of accompanying the principal crewperson.

6. Short course of study — travelling to the United States primarily for tourism, but also incidentally to engage in a short course of study during the visit [B-2 visa will be marked “Study Incidental To Visit-Form I-20 Not Required”].

7. Amateur entertainers and athletes — travelling to the United States to perform in a social and/or charitable context as a competitor in a talent show, contest, or athletic event. Incidental expenses associated with the visit may be reimbursed. However, this is only permissible under B-2 status if the amateur athlete or entertainer is not normally paid for his or her performances. A professional entertainer or athlete may not use B-2 status to perform, even if his or her performances would be unpaid.

Venice Williams is an attorney-at-law at Lewis, Smith, Williams & Co, 17 Ripon Road, Kingston 5.