B1 Status: Employment Incidental to Business Activities

 

Introduction

The B1 visitor for business category is a travel visa for business visitors to the United States. Accordingly, it does not authorize an individual for employment. However, the Department of State (DOS) Foreign Affairs Manual (FAM) authorizes the issuance of B1 visas in certain limited cases where a business visitor may engage in employment incidental to business activities. In this article, we will detail those scenarios. Before reading this article, please see our general introduction to the B1 category [see article]. Additionally, please see our selection of articles on other types of specific activities for which B1 visas may be granted:

  • B1 Status: Personal Employees and Domestic Workers [see article]
  • B1 Status: Certain Other Business Activities Classifiable as B1 [see article]
  • B1 Status: Aliens Normally Classifiable as H1 or H3 [see article]

For further information, please see our categories on B1 [see category] and B2 [see category] status.

Employment Incidental to Business Activities

Although the B1 category does not authorize employment, 9 FAM 402.2-5(C) notes that there are several situations in which an alien may be admitted as a B1 business visitor to engage in employment incidental to their professional business activities. As always, it is important to consult with an attorney for guidance on whether a proposed set of activities would fall within the B1 parameters.

1. Ministers of Religion and Missionaries

9 FAM 402.2-5(C)(1) sets forth the situations in which a minister of religion or member of a religious denomination may qualify for a B1 visa:

First, a minister of religion who would be engaging in an evangelical tour may be eligible for a B1 visa provided that he or she does not plan to take an appointment with any one church and will be supported during the tour by offerings contributed at each evangelical meeting. A B1 visa issued in this case will be marked “MINISTER OF RELIGION ON EVANGELICAL TOUR” in accord with 9 FAM 403.9-5(B)(c).

Under 9 FAM 402.2-5(I), a visiting minister engaged in an evangelical tour who is supported by offerings contributed at each evangelical meeting may be eligible to apply for and receive a social security card. To qualify, the minister must have his or her B1 visa annotated to identify the employer for whom he or she will be working in the United States and the applicable reference to the FAM. This will allow the minister and the employer to comply with any potential legal requirements. The FAM section notes that, while the activities may not constitute “employment” for purpose of the immigration law, they may be considered “employment” for other purposes, including by the Internal Revenue Service (IRS).

Second, a minister of religion who is temporarily exchanging pulpits with U.S. counterparts may be eligible for a B1 visa, provided that he or she will continue to be reimbursed by a foreign church and will draw no salary from any church in the United States.

Third, members of religious denominations, whether they are ordained or not, may in certain circumstances be granted B1 visas “temporarily and for the sole purpose of performing missionary work on behalf of a denomination.” In order to qualify for status as a B1 visitor, the work cannot involve the selling of articles or the solicitation or acceptance of donations. Furthermore, the minister cannot “receive a salary or remuneration from U.S. sources other than an allowance or other reimbursement incidental to a temporary stay.” The term “missionary work” in this context may include: (1) religious instruction, (2) aid to the elderly or needy, (3) proselytizing, or (4) certain similar activities. It categorically does not include administrative work or ordinary labor for hire.

The FAM guidance explains that there are circumstances under which an individual seeking admission to perform voluntary services for a religious organization would not qualify for R nonimmigrant status, but would qualify for B1 nonimmigrant status. In order to qualify in this scenario, the individual must meet the requirements of 9 FAM 402.2-5(C)(2), which we will discuss in the very next subsection.

2. Participants in Voluntary Service Programs

9 FAM 402.2-5(C)(2) details when participants in voluntary service programs may qualify for B1 status. Please note that these provisions may also apply to individuals seeking admission to perform voluntary services for a religious organization that would not qualify for R1 status.

An alien participating in a voluntary service program that benefits U.S. local communities may qualify for B1 status. The same applies to an alien who establishes that he or she is the member of, or has a commitment to, a particular recognized religious or nonprofit charitable organization. In either case, the individual cannot receive a salary or remuneration from a U.S. source, other than an allowance or reimbursement for expenses incidental to the volunteer's stay in the United States.

The FAM defines the term “voluntary service program.” It must be an organized project conducted by either a recognized religious or recognized nonprofit organization to:

  • Assist the poor or needy; or
  • To further a religious or charitable cause.

For B1 purposes, the program may not involve the selling of articles and/or the solicitation or acceptance of donations. The burden for establishing that a program is a “voluntary service program” in accord with these definitions is placed on the recognized religious or nonprofit organization. The organization must also meet criteria in the DHS Operating Instructions regarding voluntary workers.

In order to be admitted to the United States to participate in a voluntary service program in B1 status, the DOS requires a written statement issued by the sponsoring organization. It must include information such as:

  • Volunteer's name and date and place of birth;
  • Volunteer's foreign permanent residence address;
  • Name and address of initial destination in the United States; and
  • Volunteer's anticipated duration of assignment.

An organization seeking to sponsor volunteers in B1 status may consult with an attorney for guidance on the requirements and whether B1 status is the appropriate nonimmigrant category in light of the facts of the specific case.

3. Members of Board of Directors of U.S. Corporation

Under 9 FAM 402.2-5(C)(3), an alien who is a member of the board of directors of a U.S. corporation may procure a B1 visa if he or she is seeking to enter the United States to attend a meeting of the board or to perform other functions resulting from his or her membership on the board.

4. Professional Athletes

There are several limited cases in which B1 status may be appropriate for professional athletes as detailed in 9 FAM 402.2-5(C)(4).

First, a professional athlete who receives no salary or payment other than prize money for his or her participation in a tournament or sporting event may be eligible for B1 status. The FAM uses golfers and auto racers as examples of athletes who may, depending on the facts of the specific case, qualify for B1 status under this section.

Second, athletes or team members who seek to enter the United States as members of a foreign-based sports team in order to compete with another sports team should be admitted provided that they satisfy the following three criteria (paraphrased):

  1. The principal place of business or activity of the foreign athlete and the foreign sports team is in a foreign country;
  2. The income of the foreign-based sports team and the salary of its players are principally accrued in a foreign country; and
  3. The foreign-based sports team is a member of an international sports league or the sporting activities involved otherwise have an international dimension.

Third, the FAM has a special section concerning certain amateur hockey players. The provision applies to amateur hockey players who are asked to join a professional team during the course of the regular season, playoffs, or for brief try-outs. It affects players who are draft choices who have not yet signed professional contracts, but who have instead signed a memorandum of agreement with a National Hockey League (NHL) parent team. When seeking a visa and when seeking admission based on an approved B1 visa, the hockey player must provide a copy of both the memorandum of agreement and a letter from the NHL team that includes the details of the try-outs. If the memorandum of agreement is unavailable, the NHL team must supply the details of the try-out and state that the agreement has not yet been signed.

An athlete may consult with an attorney to determine if a B1 visa would be sufficient for his or her proposed sporting activities in the United States, or whether he or she would need to instead seek a P [see article] or in special cases, O [see article] nonimmigrant visa.

5. Yacht Crewman

9 FAM 402.2-5(C)(5) makes B1 visas available to certain crewman of a private yacht who establish that they have a residence abroad which they have no intention of abandoning. The nationality of the private yacht is not relevant. B1 status may be available to yacht crewman only if the yacht is to sail out of a foreign home port and cruise in U.S. waters for more than 29 days.

6. Coasting Officers

9 FAM 402.2-5(C)(6) cites to 9 FAM 402.8-5 for rules on those seeking to enter the United States as “coasting officers.”

9 FAM 402.8-5 requires that an alien seeking entry into the United States as a coasting officer seek a B1 visa. The provision explains that a coasting officer is employed when an officer of a foreign vessel is granted home leave while the vessel is in U.S. ports. The coasting officer substitutes for an officer on leave during the period in which the vessel is in and out of U.S. ports. An alien may only procure B1 status as a coasting officer if the vessel does not remain in U.S. waters for more than 29 days and if the original officer returns in time to depart with the vessel.

The guidance explains that a coasting officer may repeat the process with another vessel of the same foreign line.

It explains that, because a coasting officer is admitted for more than 30 days, C1 or D visas would not be appropriate and there is no reasonable alternative in the H visa category.

7. Investor Seeking Investment in the United States

9 FAM 402.2-5(C)(7) explains that an alien seeking investment in the United States may qualify for a B1 visa under certain circumstances. If the alien is seeking investment that would qualify him or her for status as an E2 nonimmigrant investor, he or she is not ineligible for B1 status solely on that basis. Furthermore, an alien who is in the process of pursuing an EB5 immigrant visa may be granted a B nonimmigrant visa in order to monitor potential qualifying investments, provided that:

  • He or she otherwise establishes eligibility for a B visa; and
  • He or she does not intend to enter the United States to pursue adjustment of status.

A B1 visitor seeking investment is precluded from performing productive labor or from actively participating in the management of the business. Please see our article on investments and B status in a different context for more information [see article]. As always, it is important to consult with an experienced immigration attorney in situations where ambiguity exists.

8. Horse Races

Under 9 FAM 402.2-5(C)(8), an alien may be granted B1 status in order to perform services on behalf of a foreign-based employer as a:

  • Jockey;
  • Sulky driver;
  • Trainer; or
  • Groomer.

Please note that this specific provision applies only to services performed for foreign-based employers.

9. Outer Continental Shelf Employees

Under 43 U.S.C. 1356, all units operating on the Outer Continental Shelf (OCS) must employ only U.S. citizens or lawful permanent residents (LPRs) as members of the regular complement of the unit, with certain specified exemptions.

The following nonmembers of the regular complement are not included:

  • Specialists;
  • Professionals;
  • Other technically trained personnel called in to handle emergencies or other temporary operations; and
  • Extra personnel on a unit for training or for specialized operation.

Under regulation, the citizenship requirement may be waived in specific circumstances outlined in U.S. Coast Guard regulations at 33 C.F.R. 141. The exemption must be obtained by the U.S. Coast Guard, not the DOS. If the Coast Guard decides to issue an exemption, it will issue a letter of exemption to the individual(s). Upon seeing the letter of exemption, the DOS may approve a B1/OCS visa for the purpose and validity period described in the letter. If the alien seeking B1 visa for this purpose does not have a letter, the consular officer must seek an advisory opinion from the DOS.

A visa approved under this provision will be annotated “OCS.”

Please see the following document from the Bureau of Ocean Energy Management for the official definition of “Outer Continental Shelf” [PDF version].

Advisory Opinion

Under 9 FAM 402.2-5(H), a consular officer must procure an advisory opinion whenever the proposed activities of a B1 visitor do not clearly fall under those specified in the FAM.

Conclusion

Although “employment” is not permitted in B1 status, the FAM shows that the DOS permits the issuance of B1 visas in several situations where the individual would be participating in employment incidental to business. However, it is important to note that the category descriptions are highly specific. It is crucial for those seeking B visas for any purpose to be forthright about their proposed activities. In the case of uncertainty, an experienced immigration attorney should be consulted. Even inadvertent violations of B visitor status may carry serious long-term immigration consequences.