The B-1, temporary business visitor, category is available for those foreign nationals who come to the United States on a temporary basis (up to six months at a time) to conduct business for an overseas company, but not to be employed in the United States.

In order to obtain a B-1 business visa, a foreign national must provide the following to a U.S. consulate:

• A U.S. State Department Form OF-156;
• A passport valid for a period at least six months beyond the date to which the foreign national intends to remain in the United States;
• A passport- type photograph; and
• Supporting documentation necessary to establish visa eligibility (see below).
  

To see or download a copy of the U.S. State Department's Form OF-156, click here.

Because foreign nationals admitted to the United States as B-1 business visitors are not coming to the U.S. to work, they can obtain visas directly from U.S. consulates. No prior petition need be filed with the Immigration and Naturalization Service ("INS"), nor is any advance approval required. As such, foreign nationals seeking a B-1 visa generally do not require the services of an attorney. Of course, Hammond & Associates can assist with obtaining a B-1 business visa in complicated cases or if any problems arise.

Foreign nationals wishing to enter the U.S. from from 26 countries, including most of Western European and Japan, may enter without applying to a U.S. consulate through the Visa Waiver Pilot Program. The rules governing permissible activities are the same as if they possessed a B-1 visa; however, the period of stay is limited to ninety (90) days, and they may not extend their stay or change to another visa without first exiting the United States.

Six month extensions of B-1 visas may be sought from the INS. However, there is no appeal if the INS decides to not grant an extension. A streamlined procedure exists for B-1 visitors seeking to remain for less than 30 additional days.

Spouses and dependent children (under 21 years old) may accompany the B-1 business visitor using a B-2, "visitor for pleasure" or "tourist" visa. B-2 visa holders may also enter the U.S. for up to six months at a time, and may receive extensions on their visas as well.

As stated above, a B-1 visa holder is allowed to conduct business in the United States for an overseas company, but cannot be employed in the United States. A non-inclusive list of permissible activities under a B-1 visa includes:

• To engage in commercial transactions (e.g., to take orders for goods which will be manufactured outside of the U.S.).
• To negotiate contracts.
• To consult with business associates.
• To participate in litigation.
• To participate in scientific, educational, professional, or business conventions or conferences.
• To undertake independent research.
  

It is very important that the foreign national receive no salary or fee from a United States source for activities amounting to local employment. The term "local employment" is a term of art which is hotly contested and frequently debated. The B-1 category for business visas is an often abused area and is comprised of multiple "gray" areas which interrelate with employment considerations and multiple tax considerations. However, factors that are considered to determine whether a foreign national qualifies for a B-1 visa include the following:

• Any profit derived must be accrued (at least predominantly) outside of the United States.
• Any compensation must be paid to the foreign employer and not the foreign national working within the United States.
• Each B-1 entry must each be clearly a temporary entry.
• The B-1 visitor must have an unequivocal intent to return to his/her foreign domicile.

There are some instances, however, where a foreign national can work within the United states on a B-1 visa. These include the following:

• Religious ministers who are:
  • temporarily exchanging pulpits with American counterparts;
  • proceeding to the United States to engage in an evangelical tour; or
  • coming for the sole purpose of performing missionary work on behalf of a denomination.
• Personal or domestic servants:
  • of U.S. citizens residing abroad, who accompany or follow to join U.S. citizen employers who have a permanent home (or are stationed) in a foreign country;
  • who accompany or follow to join employers who seek admission into (or are already in the United States) in B, E, F, H, I, J, or L nonimmigrant status; or
  • who are accompanying or following to join U.S. citizen employers temporarily assigned to the United States.
• Crew members of private yachts which will be sailing in U.S. waters for more than 29 days.
• Crewmen destined to the U.S. Outer Continental Shelf.
• Foreign nationals studying at foreign medical schools who need to travel to the United States temporarily to accept an "elective clerkship" at a U.S. medical school's hospital, so long as no salary is earned from that hospital.
  

Similarly, foreign nationals that would typically enter the United States in order to work on an H visa may work in the U.S. on a B-1 visa in the following circumstances:

• Members of the entertainment profession who enter the United States to participate in a cultural program sponsored by the sending country, and who perform before a nonpaying audience. In this case, the entertainer's expenses (including per diem) must be paid by the entertainer's government.
• Professionals (foreign nationals who hold a bachelor's degree or its equivalent) who must travel to the U.S. on short notice and for a short period of time. These foreign nationals, however, can still not receive any salary from a U.S. source, although they can be reimbursed for expenses incurred.
• Trainees who enter the United States for training purposes, but who will continue to receive a salary from their foreign employer, although the U.S. source may pay for expenses incurred. A foreign national under this scenario may also study part-time study as part of the training program.
• Professional athletes who receive no salary or payment other than prize money for their participation in a tournament or sporting event.
• Specialists coming to install, service or repair commercial or industrial equipment or machinery purchased from outside the United States, or to train U.S. workers to perform such service, provided that:
  • the contract of sale specifically requires the seller to perform such services or training;
  • the foreign national possesses specialized knowledge essential to the seller's contractual obligation to provide services or training;
  • the foreign national will receive no salary from a U.S. source; and
  • the trip will take place during the first year following purchase.
• Prospective investors coming to America to seek an investment which would qualify for E-2, treaty investor visa, provided that the visa holder does not perform productive labor or actively participate in the management of the business.
• Prospective intra-company transferees coming to open or be employed in a new branch, subsidiary, or affiliate of the foreign employer, if the visitor will be eligible for a L-1, intra-company transferee visa upon securing proof of acquisition of physical premises.