Proposed rule to focus on business visitors

The Department of Homeland Security is planning to propose a regulation aimed at tightening the B-1/B-2 business/tourist visitor visa to prevent fraud and abuse. The proposed rule was listed among the agenda items in the agency’s semiannual agenda released last month. While the item did not describe the nature of the rule under consideration, a letter dated May 30 from U.S. Citizenship and Immigration Services Director L. Francis Cissna to members of Congress who sponsored an immigration roundtable provides further details of what might be addressed in the rule.

The letter followed a roundtable between a subcommittee on national security and various federal agencies that discussed misuse of the B visa category. The roundtable included USCIS, the State Department, the Labor Department, Immigration and Customs Enforcement and U.S. Customs and Border Protection.

According to the letter:

• USCIS will propose revisions to existing regulations focused on the B visa as the agency reviews existing regulations in furtherance of the “Buy American, Hire American” Executive Order.
• The proposed regulation will clarify the criteria for admission under the B-1 and B-2 category.  According to the agency, clarifications are needed to “ensure fair and consistent adjudication and enforcement, as well as to make the criteria more transparent.”
• The agency also intends to review its policy toward “B-1 in lieu of H” (“BILOH”), an option currently recognized as a valid alternative to H visas for short assignments in limited circumstances.
• A proposed regulation has not yet been released; Cissna confirmed in the letter that there will be a public comment period after the proposed regulation is published. The letter also said that USCIS is considering making changes using policy memoranda and operational changes in addition to the proposed rule.

Background: The B category allows foreign visitors to conduct certain business activities—such as negotiating contracts; participating in business conferences, conventions or seminars; conducting business meetings; and engaging in commercial contracts, among others—but prohibits day-to-day labor for hire. The BILOH allows overseas companies to send employees who remain on foreign payroll to the U.S. for short-term work, but has been closely scrutinized for abuse in recent years.

BAL Analysis: Companies sending business visitors to the U.S. should anticipate strengthened criteria for B-1 visas and possible curtailment or elimination of the BILOH. An analysis by BAL Senior Counsel Jeff Gorsky for Law360 looks at the history of permitted B-1 activities, how the scope of B-1 activities may change under the Trump administration, and why restrictions on B-1 activities may be vulnerable to litigation challenges. Read the full article here.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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