Visa Free Travel
permissible and preparation for embassy interview or questioning at the point of entry is essential. Every business visitor should have documentary evidence of (i) purpose of travel and (ii) ties to the home country every time they seek to enter the US.
It is advisable not to risk being denied entry on visa waiver at all costs, Allowable Business Activity because one strike and for Visa Waiver (Business) and B-1 Visa you’re out; one refusal When a company is in the early stages of means a lifetime ban expanding to the US, short trips may be required for preliminary business meetings, on ever using the visa trade shows and so on. What is permissible? The short answer is activities that fall short of waiver program again. working. But what defines work? It is easier to list the activities that are permitted than to define what constitutes work in this context, because reported decisions are conflicting and fact driven. It is established that consulting with business associates; attending a convention or conference; attending short-term training; negotiating contracts; attending meetings as a member of a board of directors of a US corporation; and engaging in litigation are permitted. ’Consulting’ in this context means attending business meetings, not engaging in work as a consultant though there are some exceptions. Software programmers employed outside the US may be granted B-1 visas to analyze the scope of a US project before working on it at home and to provide after-sales service if covered by contract. Investors seeking an investment in the US which would qualify them for Treaty Investor Classification (E-2) visa may use VW or enter as B-1 visitors to handle preliminary activities in opening a US business, as long as they do not actively participate in the management of the business. (This important visa category will be discussed in the next article in this series.) Foreign independent contractors do not qualify for B-1. What is prohibited activity for B-1? Clearly, employment in the traditional sense of local labour for hire or participating in the management of a US business is overstepping the mark. What is not so clear, however, is what other business activities cross the line, as very similar cases have been decided very differently. For example, a Hong Kong tailor
who entered the US to measure customers was granted a B-1 visa, while a Canadian engineer who traveled to the US to consult with clients was denied. Suffice to say each case will turn on its own facts, but if services are being performed for which a US worker would have to be hired or any of the following questions is answered ‘no’, a denial is very likely: • are the business person’s activities directed by a foreign employer? • will profits from the business activity accrue outside the US? • are services rendered in the US incidental to international trade or contracts (e.g., exchange of merchandise or after-sales service)? • are various US entries of a plainly temporary nature? • is the source of remuneration from outside the US? The bottom line is the visit must be for a reasonably short and relatively definite period of time and with a limited goal in mind.
Eligibility Factors for Visa Waiver (Business) and B-1 Visa There is a presumption on the part of immigration officials that every applicant for a US visa intends to permanently remain in the US – a presumption of ’immigrant intent’ which the applicant must rebut. It is advisable not to risk being denied entry on VW at all costs, because one strike and you’re out; one
refusal means a lifetime ban on ever using VW again. Instead, you must apply for a B-1 visa at the local US embassy and persuade the US Consul that your purpose of travel is permissible. Why might one be refused admission on VW? If 6 months or more, cumulatively, is spent in the US out of 12, denial is almost certain. Otherwise, repeated trips and insufficient evidence of ties outside the US will result in denial. The Department of State is concerned about the so called “revolving door problem”, where VW is used to remain in the US for extended periods by leaving and returning frequently. Scrutiny is very intense and if your passport shows frequent trips of more than a week or two and swift return to the US after each trip, you may be refused. Although the various permutations of VW and the B-1 visa may not be clearly defined or perfectly matched to all legitimate business purposes, they serve a critical role in providing flexibility to the business traveler in the early stages. At some point, it’s likely to become necessary to consider work visa options, like L-1 intra-company transfer and E-1/E-2 for traders/investors. These visa categories permit work and residence in the US for applicants and their families and spouses may obtain work authorization. In some cases they pave the way to permanent residence (’green card’). We’ll examine these types of visas in detail in the next article in the series.
O’Brien and Associates O’Brien and Associates is an energetic US business immigration law firm providing dedicated personal service to corporate clients, executives, and professionals. Established in New York City in the late ’90’s, the firm opened an office in Ireland in 2004 to better serve an expanding Irish client base, particularly in the technology sector. Our client testimonials speak for themselves. For further information please visit our website, www. obrienandassociates.com or contact us to discuss your US visa options.
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