Business Immigration: The Distinction Between Doing Business and Work - New York Business Law — New York Business Law

Business Immigration: The Distinction Between Doing Business and Work

by Fred Abramson on January 8, 2010 · 0 comments

As a businessman entering the  United States, there are a variety of visas which may allow entry.  For example, if your company is interested  in attending a trade show in New York, an inexpensive and easy option is to enter the US using a B-1 visa.  However, a B-1 visa is limited to authorized business activities only.  What about contract work? The issue then becomes whether entry can be classified as an authorized business activity rather than prohibited labor or work.

The Immigration Nationality Act does not allow a vistor on a B-1 Visa to perform any type of labor. The Department of Justice defines “business” to include conventions and consultations.  It prohibits work for hire.

It is often difficult to distinguish between authorized work activities and labor.  In determining whether a  B-1 visa may be approprate  immigration officialls may question whether:

  • The activities that are incidental to work that will principally be performed outside the US;
  • The source of payment for any services rendered;
  • Actual place where any profits were made. 

There are 3 broad exceptions that a B-1 visa holder cannot accept local work.  These are:

  1. Industry-specific exceptions for certain situations, like tennis players performing at a tournament;
  2. An employee of a US citizen, such as a nanny who will enter the US on a temporary basis;
  3. Limited training activities.

CONCLUSION

Unfortunately, there is a lack of predictability and consistency in making the determination whether a B-1 is appropriate.  One place to turn is the  Department of Justice Family Foreign Affairs Manuel (available at www.state.gov/m/a/dir/regs/fam/. )   There are 18 pages of examples allowable activities under a B-1 Visa.

The consequences for inappropriately classifying yourself as B-1 Visitor is significant, which include a five year bar from entering the US.




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