There are several types of Business Visitor classifications in the U.S. This article focuses on the B-1 visa, as well as visa waiver programs. There are also visas for entrepreneurs and investors.

What is the B-1 classification?

The B-1 is a nonimmigrant classification for temporary business visitors to the U.S. As opposed to workers in the U.S., B-1 visitors may enter the U.S. for the purpose of engaging in business but not for the purpose of being employed. Commercial or professional activities that are not employment are permitted under B-1 visitor status.

Examples of permissible commercial or professional activities include (but are not limited to):

• Consulting with business associates;
• Attending conventions or conferences;
• Attending short-term training (as long as the visitor is not receiving any salary from a U.S. source or engaging in any productive employment);
• Negotiating contracts;
• Participating in business meetings;
• Taking orders for foreign goods, or other commercial transactions that do not involve gainful U.S. employment;
• Litigation; or
• Independent research or professional artistic activities (e.g., recording music or creating artwork) that do not involve income from a U.S. source.

The range of acceptable business activities that fall under the B-1 classification is fact-specific and often depends on whether the activities constitute employment while in the U.S. Factors that influence whether activities constitute employment include whether the foreign national will be paid by a U.S. company or perform labor for hire in the U.S.

What are the general requirements for the B-1 classification?

Generally, the legal requirements that must be met to obtain a B-1 visa include:

• The foreign national’s entry to the U.S. is for a limited and defined duration;
• The foreign national intends to depart the U.S. at the expiration of his/her stay;
• The foreign national has adequate financial resources for travel to and from the U.S. and for the stay in the U.S., without being employed in the U.S.; and
• The foreign national will engage solely in legitimate activities relating to business, and has specific and realistic plans for his/her U.S. activities.

What is the process to obtain B-1 classification?

Foreign nationals outside the U.S. can obtain B-1 classification by applying for a B-1 Temporary Business Visitor visa through the U.S. Department of State (DOS) at a U.S. Consulate or Embassy. For more information regarding the consular application process, check out BAL’s explainer video, which describes the process for applying for a nonimmigrant visa at a U.S. Consulate or Embassy.

After DOS issues the B-1 visa, the foreign national may seek admission to the U.S. in B-1 status. Chinese nationals who receive a 10-year B-1 visa must enroll in the Electronic Visa Update System (EVUS).

Foreign nationals inside the U.S. can apply for B-1 status by filing a Form I-539 (Application to Extend/Change Nonimmigrant Status) with U.S. Citizenship and Immigration Services (USCIS).

Foreign nationals who already hold B-1 status in the U.S. can apply to extend their status by filing a Form I-539 (Application to Extend/Change Nonimmigrant Status) with USCIS.

What limits are there on the B-1 classification?

Foreign nationals may be admitted to the U.S. in B-1 status for a period of up to six months, and they may apply to extend their B-1 status in the U.S. in periods of up to six months. Due to the temporary nature of the classification, extensions are not generally permitted beyond one year.

B-1 classification is not for employment in the U.S. This means that foreign nationals in B-1 status generally cannot receive a salary or income from a U.S.-based company while in the U.S. Foreign nationals who will be in the U.S. to engage in commercial transactions, such as meeting with buyers and accepting orders, must produce the resulting goods or services outside the U.S.

Foreign nationals in B-1 status are not permitted to enroll in a course of study in the U.S.

What is the Visa Waiver Program (VWP)?

The Visa Waiver Program (VWP) allows citizens and nationals of countries participating in the program to travel to the U.S. for periods of up to 90 days without being required to obtain a visa. If entering the U.S. using the VWP, a foreign national will automatically be granted a stay of 90 days. In most cases, foreign nationals using the VWP are not eligible to apply for extensions of stay and must depart the U.S. within the 90-day period.

Nationals of VWP countries who have traveled to Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen on or after March 1, 2011, must obtain a B-1/B-2 visa prior to traveling to the U.S. Additionally, individuals who have traveled to Cuba on or after January 12, 2021, or are nationals of Cuba are not eligible for VWP and must obtain a B-1/B-2 visa to enter the U.S. Dual nationals of Iran, Iraq, Sudan, or Syria must also obtain a B-1/B-2 visa.

What are the general requirements for the Visa Waiver Program?

To qualify for the VWP, a foreign national must meet the following requirements:

• The purpose of travel must be permitted under the B-1 Temporary Business Visitor classification or the B-2 Tourism classification;
• The foreign national must be a citizen or national of a VWP Designated Country (a list of currently designated countries is available on the U.S. Department of State’s website);
• The foreign national must typically have a valid, machine-readable electronic passport with a digital chip and a digital photograph printed on the passport data page. The passport must remain valid for at least six months beyond the intended departure date from the U.S.; and
• The foreign national must have a valid Electronic System for Travel Authorization (ESTA) prior to boarding transportation to the U.S.

What is the Electronic System for Travel Authorization (ESTA)?

The Electronic System for Travel Authorization (ESTA) is a web-based system that determines the eligibility of visitors to travel to the U.S. under the Visa Waiver Program (VWP), and whether such travel poses any law enforcement or security risk.

All travelers under the VWP must submit a pre-clearance application online or through the ESTA mobile app. Each approved ESTA application is generally valid for a period of two years, such that a Visa Waiver Program visitor may travel to the U.S. repeatedly within the two-year period without being required to apply for another ESTA. Individuals must obtain a new ESTA approval if they receive a new passport or if their information changes.

ESTA is not a visa but rather a requirement for entry to the U.S. under the VWP. However, like a visa, an ESTA approval is not a guarantee of admission to the U.S. An ESTA approval authorizes an individual to board a carrier for travel to the U.S. under the VWP.

BAL can help!

Looking for expert immigration assistance for your personal or your employee’s upcoming business visits to the U.S.?  Contact us now for help with the application process, including support on how to prepare an invitation letter for business purposes.

What is the Form I-9?

The Form I-9, Employment Eligibility Verification, is the form employers are required by law to use to verify that new hires are authorized to work in the United States. Employers must also “re-verify” the employment authorization of employees who have temporary forms of work authorization (i.e., with an expiration date). The Form I-9 is available free of charge on the U.S. Citizenship and Immigration Services (USCIS) website: www.uscis.gov/I-9.

Check out this video made by USCIS regarding the Form I-9.

Are there deadlines to complete the form?

Yes, the law imposes strict timeframes. The employee must complete Section 1 of the form no later than the first day of employment, which is the date that employment for wages or other remuneration begins. The earliest time an employee may complete Section 1 is after accepting a job offer from the employer.

Within three business days of the first day of employment, the employee must present documentation deemed acceptable by the government to demonstrate both identity and authorization to work in the U.S. The employer must physically review the employee’s original document or combination of documents, and complete Section 2 of the Form I-9 within three business days of the employee’s first day of employment. If the employee will work for the company for fewer than three days, both Section 1 and Section 2 of the Form I-9 must be completed no later than the first day of employment.

A previously established 30-day grace period (that was imposed due to COVID restrictions) is ending on July 31. Listen to the full update implications on BAL’s Immigration Report, episode 23, available here.

When does an employer need to complete a Form I-9?

All employers must complete and retain Form I-9 Employment Eligibility Verification for every person they hire for employment after Nov. 6, 1986, in the U.S., as long as the person works for pay or other type of payment.

In the Commonwealth of the Northern Mariana Islands (CNMI), employers have had to complete Form I-9 CNMI for every employee hired for employment in the CNMI from Nov. 28, 2009, to Nov. 27, 2011. The standard Form I-9 must be used for employees hired on or after Nov. 28, 2011.

What Employers Should Expect of the I-9 Audit?

In the event of an I-9 audit, either Immigration Customs Enforcement (ICE) or Homeland Security Investigations (HIS) will issue the employer a Notice of Inspection at least three days ahead of the intended audit. The Notice of Inspection will indicate whether the officials will ask for documentation to be sent in or whether the officials will visit the employer’s workplace.

Why Do You Need an Internal I-9 Audit?

Employers should proactively conduct internal I-9 audits to ensure they are compliant with all I-9 requirements and prepared in the event of an official audit. Failing an audit could result in fines and penalties on the employer including, but not limited to, criminal penalties (where there are repeat offenses), possible debarment from government contracts, as well as negative impacts on business reputation. The Department of Homeland Security recently increased fines for I-9 paperwork violations. As of 2022, fines range from $252 to $2,507 per I-9 form. Therefore, it is crucial that you prepare in advance to ensure appropriate I-9 maintenance.

BAL has an entire team of professionals who can assist companies in running I-9 compliance and E-Verify programs, as well as assist with complicated I-9 audit preparation. Contact us  for more information!

I-9 Compliance Guidance for Certain Employees That Fall Into Special Categories:

• Employees in the Commonwealth of the Northern Mariana Islands: Individuals hired for employment in the Commonwealth of the Northern Mariana Islands.
• Employees from the Federated States of Micronesia, the Republic of the Marshall Islands, and Palau: Individuals hired for employment who are from the Federated States of Micronesia, the Republic of the Marshall Islands, and Palau.
• Domestic workers: Individuals who perform child care, household tasks, and/or upkeep of a home or surrounding yard on a regular basis in return for wages or other benefits, and who are not independent contractors or providing services on a sporadic basis or for independent contractors or separate businesses.
• Minors: Individuals under the age of 18.
• Employees with disabilities: Individuals with physical or mental impairments that significantly limits one or more major life activities and are placed in a job by a nonprofit organization or association, or as part of a rehabilitation program.
• Temporary Protected Status (TPS) beneficiaries: Certain individuals from specific foreign countries beset by extraordinary and temporary conditions such as natural disasters and civil wars.
• Asylees and refugees: Non-U.S. citizens who typically have left their own country and are unable or unwilling to return because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
• Foreign students: Individuals traveling temporarily to the U.S. to pursue a full course of study in an approved program in either an academic or vocational institution, or a recognized nonacademic institution. Academic institutions include colleges, universities, seminary, conservatories, academic high schools, elementary schools, other institutions, and language training programs.
• Exchange visitors: Individuals traveling temporarily to the U.S as participants in exchange programs administered by the U.S. Department of State.
• E-Visa holders: Treaty traders and investors who are citizens or nationals of a country that has a treaty of commerce and navigation with the U.S. and who travel to the U.S. under such treaty. This category also includes Australian specialty occupation workers.
• NAFTA (TN) workers: Professionals and other workers from Canada and Mexico traveling temporarily under the North American Free Trade Agreement (NAFTA), which created special economic and trade relationships for the U.S., Canada, and Mexico.
• Temporary nonimmigrant workers: Individuals traveling to the U.S. lawfully as nonimmigrants to work temporarily in the U.S.
• Mergers and acquisitions: Employers’ Form I-9 responsibilities may be affected when they are acquired by or merge with another company.
• Employees resuming their job after a temporary break in employment: Individuals may be considered to be continuing in employment (with no new Form I-9 required) if, for example, they return to work after taking approved paid or unpaid leave or being laid off.

Exceptions for Completing and Retaining Form I-9

In some cases, employers are not required to complete or keep a Form I-9. Employers are required to complete and retain a Form I-9 for every employee they hire for employment in the United States, except for:

1. Individuals not physically working in the U.S.
2. Individuals hired on or before Nov. 6, 1986, who are continuing in their employment and have a reasonable expectation of employment at all times (some limitations to this exception apply); and individuals hired for employment in the CNMI on or before Nov. 27, 2009.
3. Individuals employed for casual domestic work in a private home on a sporadic, irregular, or intermittent basis.
4. Independent contractors or individuals providing labor if they are employed by a contractor providing contract services (for example, employee leasing or temporary agencies).

Employers can find more information about the Form I-9 requirements in the USCIS Handbook for Employers on the USCIS website.

BAL can help!

BAL has an entire team of professionals who can assist companies in running I-9 compliance and E-Verify programs. Contact us  for more information!