B-1 visa (and ESTA) for business visitors

Pursuant to INA§101(a)(15)(B), a visitor visa may be available to an alien (other than one coming for the purpose of study or of performing skilled or unskilled labor or as a representative of foreign press, radio, film, or other foreign information media coming to engage in such vocation) having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure.

The Board of Immigration Appeals, in Matter of Hira, 11 I & N Dec (1966), established the standard under which business activities are assessed for purposes of B-1 visas.  In that case, the Board found that Mr. Hira activities as a tailor who took measurements on behalf of his non-US company for custom garment production in Hong Kong were permissible under INA §101(a)(15)(B) and therefore appropriate for a B-1 visitor.  This rationale is also reflected in 9 FAM 402.2-5.

The legacy Immigration and Naturalization Service (INS) Western Regional Office issued a business visitor field guidance memorandum, stating:

In general, and taking into account the attachment, the following questions should be asked in determining permissible business visitor activities:

1. Will the individual be compensated (i.e., beyond reimbursement for expenses or per diem) from a U.S. source?

2. Will the individual, even if uncompensated, perform services for which a U.S. worker would have to be hired or are the services inherently part of the U.S. labor market?

3. Are the services primarily benefiting the U.S. entity as local work or hire (as contrasted with benefiting the alien him or herself or the foreign employer in furtherance of international trade)?

A “yes” to any of the three above could disqualify an applicant from B-1 or WB (VWP) admission.

If you can definitively answer these questions in the negative, you should feel comfortable traveling to the US for that purpose. If you are less certain, you should probably consult with a US immigration lawyer to advise you on whether you need an employment-based visa.

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