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Visitor Visas

A number of legitimate activities have been enumerated by the State Department for business visitors to the United States. This enumeration appears in the State Department's internal instructions to consular officers, the Foreign Affairs Manual. Note the following permissible activities.

The activities of employees of a foreign employer (whose salaries are paid from abroad) coming to the US to solicit sales, negotiate contracts, or take orders from established customers for work that will be performed outside the US,

In all of these cases, the principal place of business is outside the US and the actual accrual of profits from the business activity occurs abroad. These activities, which clearly further international trade or commerce, refer only to the activities of the representative of a foreign-based company, and not to an independent business entrepreneur who is coming to the US to solicit business for his or her own service activities.

Examples: (1) A fitter from a foreign customized clothing manufacturer coming to the United States to take orders from regular customers and to prepare measurements for the clothing to be made at a foreign factory (2) A representative of a foreign computer manufacturer coming to the US to negotiate sales contracts for company products (3) A company representative from a foreign-based textile manufacturer coming to the US to solicit business from US clothing manufacturers.

Suitable supporting documentation: In these situations, the company should provide any evidence that is available regarding the activities of the sales representative-appointments that have already been set up, letters of introduction that have been sent to buyers, locations that have been rented to accommodate the activities of the representative (such as the clothing fitter who might rent space to take measurements for regular customers), and so on.
Recently, some immigration agents at ports of entry have insisted on seeing evidence of advance appointments before admitting business visitors working for foreign companies who seek entry to engage in sales activities. The Immigration Service has clarified that evidence of advance appointments is not required for sales representatives to be accorded B-1 status; however, evidence of specific intended clients can prove helpful in establishing that legitimate B-1 activities are intended by the sales representative.

The activities of a purchasing agent for a foreign employer coming to the US to procure goods, components, or raw materials for use outside the US
Examples: (1) A foreign baked goods producer sends a purchasing agent to the US. to procure US flour for use by the producer at its foreign bakeries; (2) A foreign electronics manufacturer sends a representative to the US. to procure transistors for use in its manufacturing process outside the US Suitable supporting documentation: The plans for a purchasing agent may be somewhat nebulous, as arrangements for the business contacts may actually be made in the US Documentation, however, should be submitted for any appointments already set before the trip, as well as letters of introduction, preliminary contract negotiations, or inquiries regarding price and quantities. If the purchasing occurs in an industry that has regular selling periods or conventions, documentation of the timing of such regular activities should also be submitted.

The activities of employees of a foreign company coming to the US. with regard to service or sales contracts already undertaken by their company.
It is important in this type of case that the principal activity on a service contract be performed outside the US It is also crucial that the activity be performed by employees of a foreign-based company, and not by independent business entrepreneurs, who might appear to be establishing a US based business enterprise.
For many years a permissible activity under a sales contract has been the installation, servicing, or repair of manufacturing machinery by employees of the company outside the US from which the equipment is purchased. The employees can also enter in B-1 status in order to train US workers to perform these functions. This type of activity must be called for in the sales contract in order to be permissible, and must occur within one year of commencement of the contract. With regard to installations under a sales contract, a federal court decided that use of the B-1 category violates another provision of the immigration law calling for the protection of US workers. Based on an agreement between the parties to this case, the B-1 category can still be used for the purpose of Installation, service, repair, or training US personnel to handle these functions, with one exception: foreign nationals may not enter the United States in B-1 status to render services in the construction or building trades. The Immigration Service and State Department have adopted a rule that limits the B-1 category in this respect.
Foreign companies therefore should not expect to bring in construction or building trades workers in the B-1 category to install or build a facility purchased under a contract of sale by a US firm. If the US or foreign firm can demonstrate that there is a shortage of US workers who can perform the installation or construction, the workers may be able to obtain H-2B visas to enter the United States, see Ch 7, below. Otherwise, the foreign company can bring in foreign workers on the B-1 visa for the sole purpose of training or supervising US workers in carrying out the installation or construction, when the sales contract calls for such training or supervision and the installation itself involves special techniques requiring such training.
The government's policy with regard to use of the B-1 category for construction or building trade workers has been reaffirmed in light of several recent instances in which B-1 visas were issued to individuals who would be performing building and construction work. DOS has advised posts that the provisions for after-sales services do not apply to an alien seeking to perform building or construction work, whether on-site or in-plant, except for the purpose of supervising or training other workers. In order to assure uniformity in this area, posts must now request an advisory opinion regarding any case in which they believe a visa applicant is eligible for B-1 status but which may involve the actual performance of building or construction work.
Suitable supporting documentation: When activities pursuant to a sales or service contract are to be conducted, the contract needs to be submitted, together with suitable correspondence between the foreign company and the US. purchaser of the services or equipment, showing the need for the activity under the contract. Documentation of specific arrangements should also be submitted, such as correspondence setting the dates on which the US purchaser expects the presence of the foreign employees. When a sales contract calls for the use of foreign nationals in the building or construction trades, even in a supervisory or training capacity, the employer may be well advised to contact the relevant local union and lay the groundwork for admission of these personnel. Presentation of documentation to the consulate and immigration officers at the border that the relevant union has been consulted may aid in the issuance of visas and the admission of the aliens.
Note State Department and Immigration Service proposed rules: The "sales contract warranty" subcategory has recently been the center of another controversy because of its use by job contractors bringing computer professionals to the United States to provide services to the US employers.
These contractors have argued that they contract with US businesses to produce a product, i.e., a software package, which requires that they provide personnel to "install" and "maintain" the product. The State Department and Immigration Service 1993 proposed rules, reflecting current policy, endorsed the use of the "sales contract warranty" subcategory to install, service, or repair software products purchased from a foreign-based firm, but proposed the following additional requirements.
1) The purchase contract must principally be for the purchase of a physical product and not for performance of services
2) The foreign firm must be engaged in business of a commercial nature and not merely be a supplier of personnel
3) There must not be a direct correlation between the alien's salary and the payment made by the US business to the foreign employer for the contracted purchase (not permitted under the proposed rules is the practice under which a US. firm is billed by the foreign firm on an hourly basis at a set hourly rate, and the foreign firm then deposits the alien's wages in an account in the foreign country)
4) The foreign employer must control all employment-related aspects of the alien's day-to-day activities.
5) All proprietary work product of the alien must belong to either the alien or the foreign firm, and not to the US firm.
6) The right to interview and determine the acceptability of a B-1 alien representing the foreign firm, and the right to make determinations about promotion, termination, and other personnel matters, must lie solely with the foreign employer; and
7) The case of a purchase contract entered into between a United States company and a foreign company which includes provisions for installation, service, maintenance, or repair, the purchase must involve a physical product (for example, machinery or other forms of equipment), and not service activities. These additional requirements should foreclose the use of the "sales contract warranty" subcategory by job contractors. Because these proposals reflect current policy, it is unlikely that consular officers will issue B-1 visas in these circumstances.
The activities of an employee of a foreign-based company or office of a US company coming to the US to engage in consultations with US business associates
Examples: (1) Many occasions arise in business in which consultations are required to iron out details or differences in the execution of ongoing business relationships. Thus, when a project is being conducted with joint responsibility between the US and the foreign office of a company, meetings to coordinate efforts may be required. (2) A foreign selling agent of a US manufacturer may need to come to the US at regular intervals to make sales reports or discuss problems
Foreign businesspersons who own an interest in the US operation and receive financial benefits from that operation may have a problem in documenting that they are not receiving a financial benefit from services rendered by them in the United States. This problem used to be particularly acute for Canadian nationals, e.g., a Canadian-based partner in a US law firm. The North American Free Trade Agreement has alleviated the problem for Canadian businesspersons in most instances. See Ch 6 for a discussion of the alternatives now available to Canadians and Mexicans under NAFTA. Suitable supporting documentation: This type of situation is usually no problem to document, as the need to enter the US is generally set forth in memoranda and correspondence arranging the meetings to be attended by the foreign employee. When an ownership interest is at issue, the documentation should make clear that the foreign employee receives no financial benefit from the US operation, e.g. profits of the local office are distributed locally only and not to foreign partners of the business. In addition, the activities of the foreign employee should be as general as possible, and not relate to a specific billable matter for which the employer is receiving a fee in which the foreign employee might share
The activities of foreign business people coming to the US in conjunction with litigation
Suitable supporting documentation: The obvious documentation in this case is either the court document requiring the business person's presence or correspondence from the lawyer handling the case requesting the business person's attendance for a court appearance or for conferences or meetings ancillary to such appearance.
The activities of foreign business people attending professional or business conferences or conventions, or executive seminars
When the business person is a participant in the seminar, conference, or convention as a speaker or in another capacity, he or she may receive only incidental reimbursement but not payment for services rendered.
NOTE:
Commerce Department rules affect the release of high technology information to foreign nationals attending conferences in the United States. Under those rules, release is permissible without a Commerce Department license.
when the information is publicly available, as it is when a conference or seminar is open to the public. Release of certain high technology information in a conference or seminar that is not open to the public, on the other hand, may be considered an impermissible "export." In these cases, and "export" license may be required by Commerce Department rules.

Suitable supporting documentation: The obvious documentation for this type of trip is the literature announcing the conference or convention and the correspondence or receipts showing that the business person is registered to attend or invited to participate.
The activities of business employees or independent business people coming to the US to undertake independent research, such as market or product research, not directly connected with sales or service contracts or the solicitation of business
Example: A foreign independent business entrepreneur and a computer specialist are interested in marketing computer software developed by the specialist in the US. but they are uncertain about the market potential. The entrepreneur comes to the US. to research the market possibilities before undertaking to produce and market the software from his or her home country.
Suitable supporting documentation: The documentation for this type of trip is hard to come by because the enterprise itself is somewhat speculative. The visa applicant needs to provide the consulate with as much information as possible about the prospective enterprise, principally through a detailed description of the product and of the steps already taken in developing it, including the business steps taken. The best documentation to assure visa issuance would be evidence of at least some meetings already arranged with regard to the conduct of the research.

The activities of a professional who wants to come to arrange employment in this country. A professional, including engineers and other persons with university degrees in professional fields, may come to the US temporarily to work in the H-1 category in a "specialty occupation" in order to gain needed experience for career advancement in his or her own country.

The professional can obtain a B-1 visa for the purpose of coming to the US to find a temporary position that will lead to the subsequent issuance of an H-1 visa to permit the person to engage in temporary employment in the US Suitable supporting documentation: Although obtaining a B-1 visa in these circumstances is specifically listed as appropriate by the Department of State, the visa applicant will need to show that he or she does not intend to find permanent employment in the US and that he or she will, in fact, leave the US upon securing employment here in order to return to his or her home country to apply for and receive the appropriate H-1 visa, which permits work in the US The best evidence to support this visa application would be documentation of a job interview, such as correspondence from the prospective employer clearly specifying that the position is temporary. Without such evidence, it might be difficult in practice to receive the B-1 visa for this purpose.
The activities of foreign investors coming to the US to take steps to set up their investment
The B-1 visa can be used by persons who may eventually qualify for E-2 treaty-investor status, once the investment activities have progressed sufficiently to justify its issuance. The B-1 visa can be used only to take the steps necessary to set up the investment, however, such as the opening of bank accounts, acts of incorporation, signing of contracts, and the like. It cannot be used to actively manage the investment, an activity that constitutes local employment, the principal benefit of which accrues to the US. business enterprise.
Suitable supporting documentation: Documentation similar to that for the E-2 visa category is appropriate for a B-1 visa applicant seeking a visa for this reason. Documents showing the transfer of a large sum of money to the US., letters evidencing preliminary negotiations for the sale of property or a business, or correspondence with US. lawyers handling preliminary work on the investment enterprise would all be appropriate.


Aliens coming to open or be employed in a US office, subsidiary, or affiliate of the aliens' foreign employers, provided the aliens will qualify for L-1 status once suitable physical premises have been obtained for the office

The USCIS will not confer L-1 status on aliens unless evidence is submitted that suitable office space has been obtained by the US. company, either by lease or purchase. When only this step needs to be taken in order for the company's workers to qualify for L-1 status, the B-1 visa is appropriate.
Suitable supporting documentation: The company's employees must be able to document all of the essential elements for classification in the L-1 category in order to obtain a B-1 visa. These requirements are discussed at length in Ch 5. In brief, they include the existence of a qualifying corporate relationship between the US. office and the foreign employer, the alien's employment by the foreign employer for at least one year abroad prior to his or her entry to the United States, the alien's employment abroad in a capacity involving managerial or executive capacity, or a capacity involving specialized knowledge, and his or her employment in the United States in one of the same capacities.

B. Acceptable B-1 activities that fall outside the usual criteria
A few classes of activities that would normally be barred because the alien is paid from a US. source, or is engaged in productive employment in the US., are also on the State Department list. Acceptance of these activities is generally based on the view that international trade or commerce, also a B-1 criterion, is furthered by the business activity. These activities include:

Persons rendering professional services in the US that would qualify them for an H-1B visa, but who are being paid for those services by a source outside the US Persons in the entertainment field, including technicians and other ancillary personnel, are specifically excluded from this category
This exclusion applies, for example, to film crews even when the film being made is for foreign consumption only, A change in this rule is under consideration for film crews making commercials for foreign consumption only, but this change has not yet occurred.
The alien who does fall into this category, however, may be paid an expense allowance or other reimbursement from a US source for expenses incidental to his or her stay. In addition, indirect payment through a US source is permissible under certain circumstances. For example, a foreign employer may make arrangements for an B-1 visitor to be paid through a US financial institution. In addition, an employee of a foreign subsidiary of a US company may be issued payment in the United States through the US parent company.
Note that this category can be used for professional-level employees of a company that can qualify its employees for treaty trader or investor status in the E visa category, except that the employee in question is ineligible for E status because he or she lacks the same nationality as the company. The requirements for the E category, including the rules to determine the nationality of a company under trade and investment treaties, are included in Ch 4. One question deserving more attention, however, is whether simply leaving a professional on the foreign payroll of a company when he or she will be engaged in long-term, but still temporary, productive employment benefiting the US employer is permissible for B-1 classification. The plain language of the State Department instructions seems to permit this use of the B-1 visa. However, the use of the B-1 category in this way is probably limited to circumstances in which the alien's US activities can be shown to accrue to the benefit of the employer abroad and his or her presence in the United States furthers the international trade or commerce of the employer.
The visa application must fully document the alien's qualification for H-1B classification, usually based on his or her membership in a professional field, such as accounting, law or engineering. It must also document the employer's need for a professional to do the work contemplated. (See the H-1B Handbook for a full discussion of the criteria and documentation for H-1B classification).
Note:
The North American Free Trade Agreement substantially liberalizes the rules for admission of H-1 level Mexican and Canadian professionals in a special "TN" category. See Ch 6 for an explanation of the category, its requirements, and the Mexicans and Canadians to whom it is applicable.
Use of "B-1 in lieu of H-1B" subcategory by job contractors, the 1993 proposed rules, and current policy: The use of the "B-1 in lieu of H-1B" subcategory has increasingly been called into question, particularly after passage of the 1990 Act. The continued use of the B-1 category by H-1B level workers has been seen by some as a means of circumventing the congressional intent of the 1990 Act in imposing minimum salary requirements and numerical limits on the H-1B category. "B-1 in lieu of H-1B" also has come under critical media scrutiny with regard to foreign computer professional. Relying on a technical reading of the requirements set out by the Immigration Service and the State Department, job contractors with offices in another country (usually India or Great Britain) and in the United States have brought computer professionals employed by the overseas office to the United States to provide services to the US. office. In these cases, however, the business of the US office is exclusively to provide computer-consulting services to other US. businesses. Therefore, the job contractor assigns out the foreign employees to other employers under contract between the job contractor and those employers. The whole purpose of the international business in this type of case is to provide workers (often foreign workers) to US employers. The competitive edge of this type of business is precisely the lower rates it can offer to the US employers based on the salaries paid abroad at local rates to the foreign workers.

In response to this situation, the Immigration Service and the State Department have established a policy that foreign workers employed by job contractors are not eligible for B-1 visas, because the US companies in effect employ them where they are assigned. The US. Company often has control over the work of the foreign professionals, including scheduling and proprietary rights to their work product. The US. company usually also has the right to interview and determine the acceptability of all aliens employed under the contract. In view of these factors, the government agencies consider it inconsequential that the foreign professionals are paid abroad through the foreign company.

Proposed rules issued in 1993 would have eliminated altogether the "B-1 in lieu of H-1B" subcategory. The State Department also states, however, that B-1 visas may still be issued to professional-level aliens who are working for, and drawing their income from, a foreign firm as long as general B-1 standards are met. Those standards, as enunciated in the proposed rules, in part require that: (1) the work of the aliens be controlled primarily by the foreign employer; (2) the work product of the aliens, whether a tangible object or services, be created predominantly outside of the United States; and (3) a US. worker would not have to be hired if the alien is not admitted to the United States. Additional criteria proposed by the Immigration Service are also aimed at restricting use of the B-1 category by job contractors. The proposals specifically prohibit the use of the B-1 category by foreign firms established merely for the purpose of providing labor (whether unskilled, skilled or professional level) to US. firms, and other firms doing business in the United States. The 1993 proposed rule also regulates the circumstances under which an alien can enter pursuant to a contract between a US entity and a foreign firm. Specifically, the proposal states that: (1) any direct or indirect payment of the alien's salary by the US entity is prohibited; (2) while the US entity can control the day-to-day activities of the B-1 alien, ultimate control, including the location and hours of work, must be maintained by the foreign company; (3) the US entity cannot own the proprietary work product produced by the alien; (4) the right to interview and determine the acceptability of a B-1 alien must lie solely with the foreign employer.

USCIS standards for the H-3 category, narrowly limit the availability of that category; only 3,000 aliens a year are usually admitted as H-3 trainees. Therefore, employers may find the alternative of using the B-1 trainee provision to be appealing. It is important to keep in mind, however, that the B-1 trainee case needs to be carefully documented in the same manner as would be required in presenting the case to the Immigration Service. In particular, the employer should present a detailed training program to show that the program is well established and that the amount of productive employment is minimal and ancillary to the training. Many consulates examine closely B-1 visa applications based on training, to screen out situations that involve local employment rather than training; a well-documented case is essential under these circumstances. A similar skepticism may be encountered regarding B-1 training cases with the immigration inspectors at the border; such cases are unfamiliar enough that the trainee may encounter some reluctance to grant a full-year period of stay on a B visa, despite the clear authorization for this period of stay. If a problem arises with the period of stay, the best solution is to accept the period granted by the immigration inspector and address the issue subsequently in an extension of stay application.

Elective clerkships for foreign medical students. Current Immigration Service guidelines provide that an alien who is otherwise classifiable as an H-3 nonimmigrant may be classified as a B-1 business visitor if he or she is a student at a foreign medical school, and is coming to take an "elective clerkship" at a U.S. medical school's hospital as part of the foreign medical school education. An elective clerkship is defined as practical experience and instruction in the various disciplines of the practice of medicine under the supervision and direction of faculty physicians. The Immigration Service has clarified that foreign medical graduates entering in order to complete an externship/observership, or an elective rotation to familiarize themselves with the U.S. medical system in relation to residency training are not eligible for B-1 classification under these guidelines. Such programs provide the U.S. medical facilities with an opportunity to observe and assess the aliens for residency programs. The Immigration Service states that because the aliens are medical graduates, they would not be undertaking training as part of their foreign medical school education as required by the B-1 guidelines.

1993 proposed rules: The State Department and Immigration Service proposed rules issued in July and November 1993, which reflect current policy at the agencies, clarified that the "B-1 in lieu of H-3" subcategory may be used only if no U.S. employer is involved. The alien must be undertaking training sponsored by his or her foreign employer by whom the alien is already employed abroad and from whom the alien will continue to receive his or her salary while in the training in the United States.

Persons employed outside the US. who are paid from abroad, but who are coming to the US. to undertake an established training program that would qualify them for an H-3 visa

Under the H-3 visa, an alien can engage in productive employment if it is ancillary to the training program and not the principal part of that program. The training program must be an established one, usually requiring classroom study, and not just on-the-job training. Any study required at an outside institution, such as part-time studies at a university, can be undertaken as a part of the training program without the need to obtain a visa as a student in the F nonimmigrant category. An expense allowance or other reimbursement for expenses incidental to the temporary stay is permissible from a US. source. (See Ch 8 for a full discussion of the criteria and documentation for an H-3 training program.) When an alien fits within this category, he or she is usually admitted at the border for the full length of the training program, up to one year, with extensions of stay possible.

USCIS standards for the H-3 category, narrowly limit the availability of that category; only 3,000 aliens a year are usually admitted as H-3 trainees. Therefore, employers may find the alternative of using the B-1 trainee provision to be appealing. It is important to keep in mind, however, that the B-1 trainee case needs to be carefully documented in the same manner as would be required in presenting the case to the Immigration Service. In particular, the employer should present a detailed training program to show that the program is well established and that the amount of productive employment is minimal and ancillary to the training. Many consulates examine closely B-1 visa applications based on training, to screen out situations that involve local employment rather than training; a well-documented case is essential under these circumstances. A similar skepticism may be encountered regarding B-1 training cases with the immigration inspectors at the border; such cases are unfamiliar enough that the trainee may encounter some reluctance to grant a full-year period of stay on a B visa, despite the clear authorization for this period of stay. If a problem arises with the period of stay, the best solution is to accept the period granted by the immigration inspector and address the issue subsequently in an extension of stay application.

Elective clerkships for foreign medical students. Current Immigration Service guidelines provide that an alien who is otherwise classifiable as an H-3 nonimmigrant may be classified as a B-1 business visitor if he or she is a student at a foreign medical school, and is coming to take an "elective clerkship" at a U.S. medical school's hospital as part of the foreign medical school education. An elective clerkship is defined as practical experience and instruction in the various disciplines of the practice of medicine under the supervision and direction of faculty physicians. The Immigration Service has clarified that foreign medical graduates entering in order to complete an externship/observership, or an elective rotation to familiarize themselves with the U.S. medical system in relation to residency training are not eligible for B-1 classification under these guidelines. Such programs provide the U.S. medical facilities with an opportunity to observe and assess the aliens for residency programs. The Immigration Service states that because the aliens are medical graduates, they would not be undertaking training as part of their foreign medical school education as required by the B-1 guidelines.

1993 proposed rules: The State Department and Immigration Service proposed rules issued in July and November 1993, which reflect current policy at the agencies, clarified that the "B-1 in lieu of H-3" subcategory may be used only if no U.S. employer is involved. The alien must be undertaking training sponsored by his or her foreign employer by whom the alien is already employed abroad and from whom the alien will continue to receive his or her salary while in the training in the United States.

Employees of foreign airlines who are engaged in productive employment in the US. and who are paid here, but who are not eligible for E-1 treaty-trader visas because either the airline is not from a treaty country or the airline is from a treaty country, but the employee is a national of a different country

Because these aliens will engage in employment in the United States, they must obtain explicit permission to work from the USCIS after they are admitted to the United States and before they commence employment. Application for employment authorization is made on Form I-765. The application is mailed to the USCIS service center with jurisdiction over the alien's place of residence in the United States. The chapter also discusses the general instructions on packaging petitions/applications and the procedures for making status inquiries and requesting expedited processing.
Proposed rules: The State Department 1993 proposed rules, which reflect current government policy, would clarify that such aliens would be eligible for B-1 classification only if they are not eligible for E-1 or L-1 classification.
Business executives and other foreign nationals who are members of the board of directors of US. corporations, who are coming to the US. to attend board meetings or to engage in other functions arising from board membership, and who are paid an annual fee by the US. company individuals who will engage in academic activity in the United States and who will receive honoraria payments.


Personal or domestic servants coming to the United States with a US. citizen or nonimmigrant employer
Permanent resident alien employers cannot use the B-1 visa category for their personal or domestic servants, as such servants must be able to show that they intend to return to their residence outside the US at the end of their tenure. Because permanent resident aliens are by definition permanently residing in the US there is nothing to indicate that their servants will remain here temporarily.
Citizen employers may qualify their servants for B-1 status under several different circumstances. First, citizens with a permanent home abroad, or on assignment abroad, may obtain B-1 status for their servants during temporary trips to the United States. The periods of stay in the United States should generally be for six months or less for the servant to qualify for B-1 status, and the servant must have commenced employment for the citizen prior to the US visit.
Second, citizens who are temporarily assigned to the US can bring their servants with them, provided they are subject to frequent international transfers and are returning to the US for no more than four years as a condition of their employment. The servant must have been employed abroad by the employer for at least six months prior to admission to the United States and must have one year of paid experience as a servant. In addition, the employer must produce an employment contract which provides the servant with free private room and board, guarantees the "prevailing wage" as defined by the Department of Labor for the area of intended employment, and provides either party two weeks' notice of termination of the employment relationship.
For nonimmigrant aliens to bring their servants to the US., the servant must have been employed by the alien for at least one year prior to the date of the alien's admission to the US., or the alien employer must have used servants regularly over a period of several years, the servant in question must be able to document at least one year's experience, and the employment relationship must have commenced prior to the alien's entry to the US. Because these aliens will engage in employment in the United States, they must obtain explicit permission to work from the USCIS after they are admitted to the United States and before they commence employment. Application for employment authorization is made on Form I-765. The application is mailed to the USCIS service center with jurisdiction over the alien's place of residence in the United States.
The Immigration Service and the State Department recognize other uses of the category, however, such as for bona fide religious workers (who are otherwise ineligible for R status) and crew members on yachts. Professional athletes, such as golfers, race drivers and tennis players, who are coming to the United States to participate in a tournament or other activity and who will receive no salary or payment other than prize money, are also eligible for B classification (unless they have a contract with a US sponsor in which case they must utilize the O or P category). Amateur team sports players coming to the United States in response to an invitation from a professional team may be accorded B-1 classification to participate in try-outs during the course of the regular professional season or playoffs, but only incidental costs may be covered.
The US consulate where the visa application will be made can provide information regarding whether the foreign national's purpose for coming to the United States falls within one of these other narrow classes of qualified B-1 visa holders.
B-1 in lieu of J-1 for government-funded travel. The State Department has recently clarified that an individual whose travel is funded by a US. government agency may be issued a B-1 visa as long as his or her activities are consistent with B-1 status. The fact that travel is being funded in whole or in part by a US. government agency does not itself require that the traveler be issued a J-1 exchange visitor visa. J-1 exchange visitor visas are required for government-funded travel only if the visitor's principal purpose for traveling to the United States is to participate in an approved exchange visitor program.

If the sponsoring US. government agency certifies either that it has no authorized exchange visitors program or that the activities the visitor will pursue in the United States are unrelated to activities described in that agency's exchange program, a visa other than J, such as B-1, may be appropriate. If necessary, the sponsoring agency should certify in writing that no exchange program exists or that the activities are unrelated to any existing program. If the activities that the visitor will pursue in the US. are not appropriate in B visa status, however, then in most cases a J visa would be necessary.

Canadian and Mexican business persons: The rules applicable to B-1 entries for Canadians and Mexicans have been colored to some extent by the location of their countries on the US. border. Everyday commerce often brings persons of both countries across the border, resulting in activities in the US. that can appear to be local employment. The special situations that have developed include Canadian truck drivers who are paid by either Canadian or US. firms and who transport commodities across the Canadian border. Even when the employer is American, this activity has been seen as one furthering international trade and commerce and therefore acceptable for B-1 purposes. Because of the special nature of border activity, special entry documents are available for Mexican nationals--called border crossing cards--that facilitate their entry into the United States on a routine but temporary basis (note also that Canadians do not need to obtain B-1 visas but simply make the appropriate showing at the US. border to gain B-1 entry. As long as Canadians or Mexicans are not engaged in regular, salaried employment with a US. employer, most other business purposes conducive to international trade or commerce will be permitted to Canadians and Mexicans. In addition, under the North American Free Trade Agreement, the range of activities permissible to Mexicans and Canadians, including salaried employment in the case of some professionals, has grown dramatically. When temporary business entries for a Mexican and Canadian national are required, reference should be made to the provisions of NAFTA.
Tourist activities and studies as a B-1 visitor:
Aliens who enter the US. for legitimate business purposes in the B-1 category can also engage in activities associated with tourism without violating their status or needing to apply to the Immigration Service to change to the B-2 category. For example, a B-1 business visitor who enters the United States for one month to engage in procurement activity for his or her employer can spend the last week touring the United States if he or she completes the procurement activities after three weeks. The Immigration Service also permits B-1 business visitors to engage in short courses of study incidental to their trips. If the primary purpose of the trip is to undertake a course of study, however, an F visa must be obtained.
Legitimate activities in the B-2 category (visitors for pleasure)
Less difficulty occurs in defining what types of activities are appropriate for visitors for pleasure. This category includes tourists, persons on shopping trips, and persons visiting friends or relatives in the United States. It also includes persons coming to the US. to seek medical attention and persons coming to conferences or conventions not relating to business. Less often, it covers family members of aliens who are crewmen or belong to the armed services.

The category can also be used for household members of nonimmigrants in other categories who do not themselves qualify for derivative status in that category, e.g., a domestic partner of an L-1 intra company transferee or the elderly parent of an H-1B nonimmigrant

A cohabitating partner, for instance, is eligible for derivative status only if the relationship is recognized under law as being fully equivalent in all respects to a traditional legal marriage and grants the parties all the same rights and duties as a traditional marriage. If the relationship fails to meet this standard, the partner (including a same-sex partner) may utilize the B-2 category for purposes of accompanying a long-term nonimmigrant provided all standards for B-2 classification are satisfied. The rationale for this policy is that individual's seeking entry primarily for the purpose of accompanying their household members who are temporarily working or studying in the United States are engaging in appropriate B-2 activity (i.e., travel for pleasure). Of course this rationale would not apply to household members seeking entry to work in the United States (in the latter cases, a temporary work visa must be obtained by the household member).

If the purpose is for other than touring, such as to obtain medical treatment, the documentation would include letters from the attending physician, and other indications of arrangements made with US. clinics or hospitals.

Visits to friends or relatives will usually need to be supported with a letter of invitation from the US host.
The purpose of the visit and the resources of the alien visitor must coincide: a six-month visit for touring obviously requires more than several hundred dollars to undertake, and the alien must be ready to match the stated purpose with adequate means of support, including personal resources, as demonstrated by bank statements or affidavits of support, as illustrated in the following nonimmigrant visa application.
State Department and Immigration Service proposed rules.
The State Department and the Immigration Service proposed rules issued in July and November 1993 discuss the appropriate standards for the issuance of the B-2 category. While never published in final form, these rules sought to codify existing State Department and Immigration Service policy that applies to the B-2 category and should be considered by the B-2 applicant. Generally, B-2 visitors must maintain a foreign residence and be coming to the United States to engage in a legitimate activity of pleasure, which includes activities of a recreational nature, such as tourism, amusement, visits with friends or relatives, rest, medical treatment, and activities of a fraternal, social, or service nature.

Specific activities endorsed by the proposed rules include:

• An alien coming for tourism (who may engage in an incidental short course of study)

• An amateur entertainer or athlete engaging in an amateur activity (incidental expenses may be reimbursed to the alien)

• An alien who is a dependent accompanying one of the following principal aliens: (1) An alien member of the U.S. Armed Forces temporarily assigned for duty in the United States; (2) A crew member in the D nonimmigrant category; (3) A U.S. citizen or resident alien coming temporarily to the United States; or (4) A nonimmigrant principal alien, when the dependent is not entitled to derivative status

• An alien coming to marry with the intent to return to a residence abroad soon after the marriage

• An alien coming to meet his or her fiancé(e)'s family, to become engaged, to make wedding arrangements, or to renew a relationship with a prospective spouse

• An alien spouse who has married by proxy an alien in the United States in nonimmigrant status (once in the United States, the alien spouse must seek the appropriate derivative status)

• An alien seeking to enter the United States to apply for naturalization as a former member of the armed forces under § 329 of the Immigration and Nationality Act

• A dependent of an alien member of the U.S. Armed Forces, when the alien member is qualified for naturalization under § 328 of the INA

• An alien attending a school that is a vocational or recreational in character (such schools may not issue certificates of eligibility in the F or M nonimmigrant category)

• An alien seeking to enter the United States in emergent circumstances, when the alien is otherwise entitled to lawful permanent resident status

• An entertainer who is a resident or national of Canada or Mexico and is coming to the border area of the United States to participate in a long-established religious festival or ceremony, or in a long established bi-national civic celebration

• A prospective F-1 or M-1 student who is seeking to enter the United States more than 90 days prior to his or her expected registration date, is fully qualified for classification as an F-1 or M-1 student, and will apply for change of nonimmigrant classification to one of these categories

• A prospective F-1 student coming for the purpose of selecting a school, if the alien is an apparently bona fide academic or language student and has not definitely determined which school he or she will attend

B-2 status for family members of other nonimmigrants
In determining whether a partner (or other household member) seeking B-2 status to accompany a long-term nonimmigrant meets B-2 standards, the following guidelines are utilized:
Extended stays in B-2 status may be considered temporary. As a result, the fact that the partner (or other household member) may be living in the US for an extended period with the long-term nonimmigrant is not a bar to B-2 status. Consular officers are instructed not to focus on the absolute length of stay but rather on whether the stay has some finite limit. For example, the temporary requirement is satisfied if the household member has stated his or her intention to accompany and depart with a principal alien who is on a two-year work assignment or enrolled in a four-year degree program.
In determining whether the partner (or other household member) has overcome the presumption of immigrant intent, officers should examine the partner's ties abroad and the likelihood that they will stay in the US unlawfully after the principal alien departs. Other factors include the strength of the relationship to the principal alien and the principal alien's own ties abroad. As a result, a B-2 applicant who has lived with the principal alien for many years and both have strong ties to their home country should be able to overcome the 214(b) presumption. On the other hand, a partner who only recently enter into a relationship with a principal alien and who had weak ties abroad may have difficulty overcoming the presumption. The DOS guidance emphasizes that the presumption if immigrant intent must be overcome in every B-2 case even if the principal alien is not subject to the 214(b) presumption (e.g. E, H and L nonimmigrants).
There are certain procedural hurdles for household members using the B-2 category in these circumstances. Specifically, the initial period of B-2 admission in most cases will not be sufficient to accommodate their planned stay. The maximum initial period of admission in B status is one year and, in practice, B visitors are normally granted an initial period of admission of six months. As a result, B-2 household members in most cases will need to apply for one or more extensions to cover a long-term period stay in the United States. In this respect, B-2 status may be extended in six-month increments. To assure that B-2 household members are granted the maximum period of initial admission, they should ask the immigration officer at the port of entry for a one-year stay when they apply for admission. They must also be careful to file for extensions on a timely basis to avoid falling out of status, particularly in light of the 3/10-year bar.

Studying while in B-2 status.
The immigration law clearly states that a B visitor cannot engage in studies. A few exceptions to that rule, however, have been carved out by the Immigration Service. First a tourist in B-2 status can engage in a short course of study that is secondary to the main purpose of his or her trip, e.g., sightseeing or visiting family members. Although the type of "short course of study" permissible is not spelled out in Immigration Service rules, it should not last more than a few months, and certainly cannot include a degree-granting program such as a college or university would offer. State Department instructions state that a B-2 visa is appropriate for persons planning to study English, as long as the course of study is under 18 hours per week and the course is of "short duration." Persons seeking enrollment in a recreational school also are classified in the B-2 category, since these types of schools are not eligible to classify their students in the F category.
The B-2 visitor who knows that he or she will engage in a short course of study incidental to his or her trip can obtain a visa on this basis from a US. consulate; the visa will include the notation: "Study incidental to visit; I-20 not required" (Form I-20 is the form issued by schools to indicate that an alien has been accepted for a course of study; it normally must be shown by the alien to the consulate and at the border).

B-2 status for part-time commuter students.
In May 2002, the Immigration Service decided that its longstanding practice of admitting Canadian and Mexican nationals to cross the border as B visitors to study part-time at border-area schools was an impermissible use of the B nonimmigrant category. The conclusion was reached as part of a general review of the uses of the B nonimmigrant category spurred by the events of 9-11. Since it was thought that these students could not qualify for F or M nonimmigrant student visas, because the statutory provisions creating these categories require eligible students to be enrolled in a "full course of study," there appeared to be no legal basis for these students to be admitted to the United States. The Immigration Service originally ordered a halt to admission of these students by July 1, 2002, but permitted the use of humanitarian parole to continue to admit currently enrolled part-time commuter students through that date. No admission of students enrolled after May 22, 2002, was permitted under the Immigration Service guidance originally issued.
The new policy caused uproar in border states and in Canada and Mexico. It turns out that tens of thousands of Canadian and Mexican students are engaged in part-time studies at US schools on a commuter basis, and were being routinely admitted as B nonimmigrants to attend their classes. These commuter students were paying in the aggregate millions of dollars of tuition, and the sudden loss of that source of revenue would have jeopardized the financial stability of many border-area schools, including the loss of federal matching funds based in part on total enrollment. Intense pressure ensued from members of Congress and the schools themselves, leading the Immigration Service to extend the use of humanitarian parole twice, first through August 15, 2002 and then through December 31, 2002. That stop-gap solution only applied, however, to currently enrolled students and would not have helped Canadian or Mexican nationals seeking to undertake new part-time studies starting with the Fall 2002 semester. The Immigration Service finally resolved the issue by promulgating an interim rule, effective August 27, 2002, that permits commuter students from Canada and Mexico to enter the United States in F-3 status to study part-time at US schools that are located within 75 miles of either border. This policy has now been codified into law.
B-2 status for "au pairs"
In the past, it has not been uncommon for US citizens to agree to have foreign nationals enter the United States as "au pairs"--working in their household or caring for young children in exchange for room, board, and the chance to experience and travel through the United States. Typically, the au pair is a young woman, often coming to the United States during a summer vacation from school. The au pair is considered by the Immigration Service to be working in the United States, and is therefore barred from using the B-2 category.
Because some fairly common characteristics are the hallmark of the au pair situation, the Immigration Service has developed a "profile" that permits it to screen B-2 visitors for potential au pairs, and it is fairly successful at doing so. Until recently, no alternative category permitted entry to au pairs. Now, however, several exchange visitor programs (the J-1 visa category) have been approved by the US. Information Agency to permit au pairs to enter the United States for temporary stays.
 
 
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