Business travel to the United States – not as simple as you might think!
The B visa category in the United States is for visitors – B-1 for business travel and B-2 for tourist travel. Sounds pretty simple, right? Unfortunately, it’s a bit more complicated than it seems, and lack of proper planning can lead to disaster, such as the Australian employee being told upon arrival in the United States after a 20 hour flight that he or she will not be permitted to enter the country.
Some of the many questions that need to be asked include:
Is the employee eligible for the Visa Waiver Program (VWP)?
The individual may be a citizen of one of the 36 eligible countries (such as Australia) for this program which requires a simple online registration process and permits travel to the US for up to 90 days without the need to obtain a B-1 visa stamp. However, the following factors may render a traveler ineligible to use the VWP:
- A criminal record - note that this may even include a DUI conviction;
- Previously denied a US visa or entry into the United States – no matter how long ago, or even if it was only one denial;
- Entering the United States on a private jet;
- Representing foreign media in the United States; or
- Any of the other many categories of inadmissibility, such as for health problems, national security concerns, prior immigration violations, etc.
Even though the employee is eligible for the Visa Waiver Program, would it be more beneficial to obtain a B-1 visa?
Even if an employee is eligible to use the VWP, it may be more advantageous to obtain a B-1 visa; for example, if the employee:
- may need to remain in the United States for more than 90 days; or
- will be engaging in activities that border between “business visitor activities” and actual work. A special type of B-1 visa, the “B-1 in lieu of H-1B” may be appropriate in this scenario.
What activities can our employees perform while in visitor status?
The short answer to this question is “anything but actual work,” but of course that begs the obvious question, how do you define “work”? This is a grey area of the law; however some examples of permissible business visitor activities include:
- soliciting sales, negotiating contracts, or taking orders from established customers for work that will be performed outside of the US.
- purchasing goods, components, or raw materials for use outside the US.
- engaging in meetings with US based counterparts or with business associations.
- attending professional or business conferences, conventions, or executive seminars.
- receiving training in the US, usually for short periods, which will be used by the employee upon return to his or her position abroad.
The ramifications for non-compliance in the US are severe. Getting it wrong can affect an individual’s immigration record for life and there are also potential criminal penalties for violations including fines up to USD 25,000 or 10 years imprisonment.
Fragomen is a leading global corporate immigration law firm with deep and practical experience in US visitor visas and all other types of US visas and work permits. Speak to our Australian-based US attorney to find out how we can help you and your business.
Noah E. Klug
US Attorney at Law
Manager – US Immigration, Asia Pacific
Fragomen
Phone: +61 3 9613 9316
Website: www.fragomen.com
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Other topics:
- Centre for International Employment and Migration (CENTIEM) – a Fragomen initiative and business unit within Fragomen Australia www.centiem.com
- American Council on International Personnel www.acip.com
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