B1 Status: Certain Business Activities Classifiable as B1

 

Introduction

The B1 nonimmigrant visitor category allows for certain business visitors to visit the United States. The U.S. Department of State's (DOS's) Foreign Affairs Manual (FAM) outlines the specific situations in which B1 status may be appropriate. In this article, we will examine situations in which B1 status may be granted for cases that may also be classifiable as A, E, H, F, L, or M.

Before reading this article, please see our general overview of the B1 category [see article]. Additionally, please see our selection of articles on other specific situations for which B1 status may be granted:

  • B1 Status: Employment Incidental to Business Activities [see article]
  • B1 Status: Personal Employees and Domestic Workers [see article]
  • B1 Status: Aliens Normally Classifiable as H1 or H3 [see article]
  • B1 Status: Entertainers and Artists [see article]

B1 Commercial or Industrial Worker

Overview: Certain Other Business Activities Classifiable as B1

9 FAM 402.2-5(E) lists categories classifiable as B1 that may in other circumstances be classifiable as A, E, H, F, L, or M. In the foregoing subsections, we will follow the FAM guidance to understand which activities under these categories may be covered by a B1 business visitor visa in lieu of a more specific nonimmigrant visa. It is always important to be forthright in the visa application process when seeking a B visitor visa. Furthermore, an experienced immigration attorney may assess a case and determine which type of nonimmigrant visa would be most appropriate.

1. Commercial or Industrial Workers

9 FAM 402.2-5(E)(1) explains when a B1 visa may be issued to commercial or industrial workers.

Under 9 FAM 402.2-5(E)(1)(a), an alien may be eligible for a B1 visa if he or she is:

  • Coming to the United States to install, service, or repair commercial or industrial equipment or machinery purchased from a company outside the United States; or
  • Training U.S. workers to perform such services.

Even if the alien meets one of the above two conditions, B1 status is only appropriate in cases where the contract of sale specifically requires the seller of the commercial or industrial equipment or machinery to provide such services or training to the buyer. Furthermore, the B1 visa applicant must possess “specialized knowledge” that is essential to fulfilling the seller's contractual obligation to perform the services or training. A B1 commercial or industrial worker may not receive remuneration from any U.S. source.

9 FAM 402.2-5(E)(1)(b) makes clear that B1 status as described above is not available for an alien seeking to perform building or construction work (on-site or in-plant). However, there is a limited exception for an alien who is seeking a B1 visa for supervising or training other workers engaged in construction work provided that he or she is not actually performing any building or construction work.

In general, B1 status for commercial or industrial workers is limited to individuals seeking admission in order to fulfill specific contractual obligations of a foreign seller. Furthermore, it does not allow B1 commercial or industrial workers to actually engage in building or construction work while on B1 status. Cases not described above would require a different type of nonimmigrant visa.

2. Foreign Airline Employees

9 FAM 402-2-5(E)(2) explains when B1 status is appropriate for foreign airline employees. B1 status is available in two limited cases.

First, In order to be eligible, the foreign airline employee must be (paraphrased):

  1. Seeking entry into United States for employment with a foreign airline that is engaged in international transportation of passengers and freight;
  2. Working in an executive, supervisory, or highly technical capacity; and
  3. An individual who meets the requirements for E visa classification but is ineligible for E1 treaty trader status solely because he or she is not a national of a country with which the United States has a treaty for E1 purposes or because he or she is not a national of the airline's country of nationality.

Please see our full article for a list of countries with which the United States has treaties for E1 purposes [see article].

Second, the FAM explains that employees of foreign airlines who are seeking admission into the United States to join an aircraft for an onward international flight may be classifiable as B1. This is because such individuals are not transiting the United States and are not admissible as alien crewmen. However, the FAM makes clear that work on solely domestic flights is not permissible in B1 status. All applicants for admission are subject to inspection by an officer of the U.S. Customs and Border Protection (CBP) for a final determination of admissibility.

3. Clerkships

9 FAM 402.2-5(E)(3) sets forth when B1 status is appropriate for medical clerkships or business and other professional or vocational activities. Please see our full article on this section to learn about the subject in detail [see article].

4. Participants in Foreign Assistance Act Program

9 FAM 402.2-5(E)(4) makes B1 status available to an alien who is “invited to participate in any program furnishing technical information and assistance under section 635(f) of the Foreign Assistance Act of 1961, 75 Statute 424.” The Foreign Assistance Act of 1961 [PDF version see page 456] itself renders such aliens eligible for nonimmigrant status under the Immigration and Nationality Act (INA).

5. Peace Corps Volunteer Trainers

9 FAM 402.2-5(E)(5) explains that an alien who is invited to participate in the training of Peace Corps volunteers or who is coming to the United States under contract under sections 9 and 10(a)(14) of the Peace Corps Act (75 Statute 612) [PDF version see pages 617-619] is eligible for B1 classification unless he or she otherwise qualifies for A classification.

6. Internship with the United Nations Institute for Training and Research

Under 9 FAM 402.2-5(E)(6), a participant in the United Nations Institute for Training and Research program of internship for training and research is classifiable as B1, provided that he or she is not the employee of a foreign government.

7. Aliens Employed by Foreign or U.S. Exhibitors at International Fairs or Exhibitions

9 FAM 402.2-5(E)(7) sets forth limited circumstances in which an alien employed by foreign or U.S. exhibitors at an international far or exposition may be classifiable as B1. An alien may be classifiable as B1 if he or she is (paraphrased):

  1. An alien representing a foreign government in a planning or supervisory capacity and/or their immediate staffs are entitled to A classification if an appropriate note is received from their government, and if they are otherwise properly documented.
  2. An employee of foreign exhibitors at international fairs or exhibitions who is not a representative of a foreign government (these cases are ordinarily classified as B1).

The FAM explains that alien employees of U.S. exhibitors or employers are not classifiable as B1. However, such alien employees may be classifiable as H1 or H2.

In general, B1 status is available for exhibitors at international fairs or expositions in only limited cases.

Conclusion

The B1 nonimmigrant category is occasionally available in circumstances that would normally be classifiable under other nonimmigrant visa categories. When seeking a B visa, it is always imperative to be forthright with consular officials and with the CBP when seeking admission. In addition to the requirement that individuals not misrepresent their purpose in seeking a visa, the DOS will be able to determine if a case is not classifiable as B1 and if the individual must instead seek a different nonimmigrant visa. Individuals in uncertain cases may first consult with an experienced immigration attorney for guidance. For those already in the United States on B1 status, it is important to consult with an attorney when in doubt as to whether a specific activity is permitted.