Do I need a work visa? Crossing the non-immigrant for business (B-1) visa line

Section 101(a)(15)(B) of the Immigration and Nationality Act (INA) defines a visitor for business as an alien having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business. But what exactly does business mean for purposes of INA? By pertinent regulation, 22 C.F.R. 41.40(b), the term “business” as used in section 101(a)(15)(B) of the act refers to legitimate activities of a commercial or professional character, not including, however, purely local employment or labor for hire. These commercial transactions not involving gainful employment include but are not limited to: making phone calls, giving employees instructions, negotiating contracts, litigation, consulting with clients or business associates, an alien who is a member of the board of directors of a US corporation, coming for a board meeting and professional athletes such as golfers and race drivers who receive no salary, only tournament money.

Controversy arises over the extent to which a B-1 can be used. Labor for hire, which is incidental to legitimate activities of a commercial or professional character of a temporary nature is precluded from the meaning of business, Karnuthet al v. United States ex rel. Albro, 275 U.S. 231, 241, however, as business evolves, alien visitor should be careful that labor for hire, which is incidental to legitimate activities of a commercial or professional character of a temporary nature does not become unlawful employment.

When business activity almost exclusively involves the full-time management of a US enterprise, B-1 is not valid, Matter of Lawrence, 15 I&N Dec.418, 420 (BIA 1975). To address this situation, guidelines have been set to help you determine your eligibility for admission as a temporary visitor for business. The significant factors for consideration are: (a) is there a clear intent on the part of the alien applicant to continue his foreign residence and not to abandon his existing domicile; (b) are the principal place of business and the actual accrual of profits predominantly in the foreign country; (c) are the various entries in the United States of a plainly temporary nature, Matter of B— and K—, 6 I. & N. Dec. 827, 829. If you can see yourself performing hands-on business activity, abandoning your domicile in the future, expanding your business, making the United States your primary place of business and permanently residing in the United States, then you should start investigating and consult with an immigration attorney as to which nonimmigrant visa employment-based visa is best for you and your business situation.