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IMMIGRATION AND NATIONALITY LAW
		May 2004 Permissible Business Activity for Foreign Visitors In determining eligibility for foreign business visitors, virtually nothing is certain but uncertainty Joanne Trifilo Stark

It is common for foreign business visitors attempting to enter the U.S. carrying either a "visa waiver for business " (VWB) or a "B-1 business visitor" visa stamp to undergo tough scrutiny at the Port of Entry airport or land crossing. That scrutiny may arise out of uncertainty over whether that individual is entering the United States for an appropriate purpose.

Foreign business visitors must always be "furthering international commerce or business," and any services provided in the U.S. must be incidental to international trade and commerce.

Business visitors must be able to show:

• their intent to depart at the expiration of their business trip, as evidenced by employment or by family or social ties to the residence abroad;
• that they have a residence in a foreign country and their purported residence is "an actual dwelling place in fact"; and
• that they have the financial resources or have made adequate financial arrangements to carry out the business of their visit.

Holders of a B-1 visa stamp or VWB are authorized to do certain things in the U.S. They may engage in commercial transactions, but not domestic "gainful employment." For example, negotiating contracts, participating in litigation, or consulting with clients or business associates are acceptable activities, but full-time management of a U.S. enterprise is not.

A basic eligibility test for business visitors is that they be legitimately involved in a commercial or professional activity and not be local employment or labor for hire. They must have a clear intent to continue foreign residence, and their principal place of business and accrual of profits must be predominately in a foreign country.

What is and is not acceptable is subject to case-by-case determination. As one example, U.S. immigration authorities, together with the State Department, have determined that foreign workers hired under a contract labor arrangement between a foreign software company and a U.S. telecommunications company were not eligible to enter as B-1 visitors to carry out the conditions of the contract.

In another case, it was determined that business visitor status was disallowed for a sculptor/painter who wanted to come to the U.S. for less than six months a year to display his work and receive commissions.

Here are some other acceptable activities for foreign business visitors:

• A business visitor may participate in scientific, educational, professional, religious or business conventions and may even receive an honorarium and incidental expenses for "usual academic activity" from an academic institution, as long as the visitor does not stay for longer than nine days at a single academic institution and has not accepted more than five such honoraria in a six-month period.
• Professional athletes such as golfers and racecar drivers who receive only competition winnings (but no salary) may enter the U.S. as business visitors for brief periods.
• The same is true for foreign medical students seeking to take "an elective clerkship" without remuneration.
• A foreign business visitor who is the member of the board of directors of a U.S. corporation may enter the U.S. for a board meeting.
• Foreign corporate personnel may enter to set up a U.S. subsidiary or to explore U.S. investment opportunities.
• A foreign worker may enter to oversee construction work, but he may not perform the work himself. Building or construction work is considered local employment or labor-by-hire.

The U.S. entries must be clearly temporary. For example, Canadian farmers making periodic trips to the U.S. to sell produce; Canadians who bought fish in Canada and transported it to the United States for an American company who paid in Canadian money; and a Hong Kong tailor entering the U.S. to measure customers have all been deemed to be engaged in valid B-1 activities.

In determining eligibility for foreign business visitors, virtually nothing is certain but uncertainty, and many determinations are made on a case-by-case basis.

If your company is engaged in international business activities that involve visits to the U.S. by foreign representatives, you and they should be aware of the potential complexity surrounding their entry into this country and have experienced legal resources available.

These materials are designed to provide general information prepared by professionals in regard to the subject matter covered. It is provided with the understanding that the author is not engaged in rendering legal, accounting, or other professional service. Although prepared by professionals, these materials should not be utilized as a substitute for professional service in specific situations. If legal advice or other expert assistance is required, the service of a professional should be sought.