Permissible Activities While on B2 Status

 

Introduction: Permissible Activities while in the United States on a B2 Visa

B2 visaThe B-2 (B2) visa is for temporary visitors for pleasure. There are limited activities that a B2 temporary visitor for pleasure may engage in lawfully. Employment and full-time education are categorically prohibited while on B2 status. In this article, we will assess statutes, regulations, agency guidance, and administrative decisions to explain what are permissible activities while on B2 status.

In order to learn about how to visit the United States with a B2 visa or under the visa waiver program, please follow this link.

Statutory Background for B2 Visas

The statutory provision for the B2 visa is found in section 101(a)(15)(B)of the Immigration and Nationality Act (INA). By law, B2 status is for “a [nonimmigrant] alien (other than one coming for the purpose of study or of performing skilled or unskilled labor or as a representative of foreign press, radio, film, or other foreign information media coming to engage in such vocation) [who has] a residence in a foreign country which he has no intention of abandoning and who is visiting the United States … temporarily for pleasure.”

Thus, the statute explicitly states that aliens seeking to enter for the following purposes are not eligible for B2 status:

  • To study
  • To perform skilled or unskilled labor
  • To enter as the representative of foreign press, film, or other foreign information media, or to engage in such work.

A further requirement is that the alien demonstrate that he or she has a “residence in a foreign country which he [or she] has no intention of abandoning.”

The statute does not define “pleasure.” In order to define this term, we have to look to regulations, agency guidance, and administrative precedents.

Defining “Temporarily for Pleasure”: Permissible Activities while on B2 Status

The Board of Immigration Appeals (BIA) held in its 1979 decision, Matter of Healy and Goodchild, 17 I&N Dec. 22 (BIA 1979) [PDF version], that the B2 category is not a “catch-all classification” available to temporarily enter the United States for whatever purpose, but rather that it “encompasses a specific, defined class of aliens.”1

“Pleasure” is defined in Department of State (DOS) regulations as: “[referring] to legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment, and activities of a fraternal, social, or service nature.”2

Based upon administrative precedent and regulations, the DOS' Foreign Affairs Manual (FAM) goes into great detail regarding the activities that are permissible while on B2 status.

The FAM lists the permissible activities that an alien may engage in while on B2 status in 9 FAM 402.2-4(A):

  1. Tourism or Family Visits — traveling to the United States for purposes of tourism or to make social visits to relative(s) or friend(s).
  2. Medical Reasons — coming to the United States for health purposes.
  3. Participation in Social Events — participating in conventions, conferences, or convocation of fraternal, social, or service organizations.
  4. Armed Forces Dependents — coming as the dependent of an alien member of any branch of the U.S. Armed Forces temporarily assigned for duty in the United States.
  5. Dependents of Crewmen — coming as the dependent of a category “D” visa crewman solely for the purpose of accompanying the principal crewman.
  6. Short Course of Study — coming to the United States primary for tourism, but also incidentally will engage in a short course of study during the visit [B2 visa will be marked “STUDY INCIDENTAL TO VISIT-Form I-20 NOT REQUIRED”].
  7. Amateur Entertainers and Athletes — coming to the United States to perform in a social and/or charitable context as a competitor in a talent show, contest, or athletic event. Incidental expenses associated with the visit may be reimbursed. However, this is only permissible under B2 status if the amateur athlete or entertainer is not normally paid for his or her performances. A professional entertainer or athlete may not use B2 status to perform even if his or her performances would be unpaid.

The main uses for the B2 visa are for tourism and visiting friends or family. However, as the FAM explains, there are other potential uses for the B2 visa. For example, an alien who demonstrates that he or she needs temporary medical care in the United States may obtain a B2 visa for that purpose. Provided that pay is not provided, a person may even use a B2 visa to participate in conventions or conferences.

Special Circumstances for which a B2 Visa May be Used

In addition to the general uses for B2 visas, there are also special uses for the B2 visa category. The special circumstances are found in 9 FAM 402.2-4(B):

  1. Fiancé(e) of U.S. Citizens or Permanent Resident Aliens — An alien fiancé who would otherwise be classifiable as K-1 (K1) (fiancé(e) of U.S. citizen) [see article] may instead be classified as B2 provided that consular officials are satisfied that he or she intends to return to a foreign residence after the wedding. A B2 visa may also be granted so an alien can meet the family of his or her fiancée, become engaged, make wedding arrangements, or renew a relationship with the prospective spouse.
  2. Fiancé(e) of Nonimmigrant Alien in the United States — An alien who has a foreign residence that he or she has no intention of abandoning may obtain a B2 visa in order to marry a person maintaining nonimmigrant status in the United States. The B2 may change status after marriage, however, B2 status should not be granted if the B2 visa-holder plans to abandon his or her foreign residence after marriage (and after changing to a status that does not require the maintenance of a foreign residence) or if the B2 visa-holder plans to adjust to an immigrant status.
  3. Proxy Marriage — A spouse married by proxy to an alien in the United States in nonimmigrant status may be issued a B2 visa to join the spouse already in the United States. Upon arrival, the B2 visa holder may apply for a change to the appropriate derivative nonimmigrant status.
  4. Spouse or Child of U.S. Citizen or Resident Alien — An alien spouse or child of a U.S. citizen or LPR may obtain a B2 visa to make a temporary visit.
  5. Cohabiting Partners, Extended Family Members, and Other Household Members not Eligible for Derivative Status — An alien household member of an alien in long-term nonimmigrant status who is not eligible for a derivative visa may obtain a B2 visa. Household members of U.S. citizens who normally work overseas but are returning to the United States temporarily may also obtain B2. An alien for whom it would be inconvenient or impossible to apply for or obtain a derivative nonimmigrant visa may apply for B2 as well. Such individuals must maintain a foreign residence to which they have an intention to return.
  6. Aliens Seeking Naturalization under INA 329 — An alien who is entitled to section 329 benefits and is entering to take advantage of such benefits may obtain a B2 visa without having to meet the foreign residence abroad requirement.3
  7. Issuance of a B-2 Visa for Expeditions Naturalization of a Child under INA 322 — A child who is eligible for naturalization under section 322 may obtain a B2 visa to complete the naturalization process [see article]. Children who have been paroled into the United States and are eligible for section 322 naturalization may obtain a B2 visa to complete the process. However, the child must intend to return to a residence abroad after naturalization. If the family is relocating to the United States, it must seek an immigrant visa for the child instead.
  8. Dependents of Alien Members of U.S. Armed Forces Eligible for Naturalization under INA 328 — An alien who is the dependent of an alien member of the U.S. Armed Forces who qualifies for naturalization under section 328 may obtain a B2 visa to accompany his or her spouse or parent.4 The possibility of subsequent adjustment of status does not necessitate the denial of a B2. If the B2 visa is denied, the alien may instead seek parole to enter the United States.
  9. Aliens Destined to Avocational or Recreational School — An alien enrolling in school for avocational or recreational purposes may obtain a B2 visa to do so.
  10. Lawful Permanent Resident Issued Nonimmigrant Visitor Visa for Emergency Temporary Visit to United States — If an LPR has been absent from the United States and needs approval to return temporarily and expeditiously, he or she may obtain a B2 visa to do so.
  11. B-2 for Adoptive Child Coming to United States for Acquisition of Citizenship — A child seeking to enter the United States in order to acquire citizenship under the Child Citizenship Act of 2000 may be admitted as a B2 provided that the child demonstrates the intent to return abroad after a temporary stay.

Employment is Not Authorized While on B2 Status

Employment is prohibited while on B2 status. In 1982, the BIA held in Matter of Hall, 18 I&N Dec. 203 (BIA 1982) [PDF version] that a nonimmigrant, who worked as a missionary in the United States for no salary, only receiving money for room, board, other essential needs, and pocket change, had violated his B2 status.5

A legacy Immigration and Nationality Service legal opinion held that while a visiting university lecturer could “give a brief, impromptu speech or take a short-term course as an incidental part of his or her visit to the country,” the university lecturer could not have his or her expenses subsidized (in whole or in part) and maintain B2 status.6 A university lecturer who would have his or her expenses covered in whole or in part by a U.S. university would have to seek B1 business visitor status instead. Furthermore, a university lecturer could not use a B2 visa primarily to render services to the university even if the services are unsubsidized.

In order to work in the United States, the B2 visitor must obtain a change of status to a category that permits employment [see change of status]. However, this will likely be difficult as the B2 visitor will have to demonstrate that he or she did not have preconceived intent in order for the change of status to be approved.

Is Remote Work Authorized While on B2 Status?

As more and more people use the internet to work, we have noticed people inquiring as to whether doing remote work for a foreign company (with no connection to the United States) is permissible while on B2 status. More broadly, the question is whether any work for a foreign employer while in the United States on B2 status is permissible. For reasons that we will explain, we believe that the answer is categorically no.

For one, statute explicitly prohibits the B2 visa being used “to perform skilled or unskilled labor.”7 Furthermore, the FAM instructs consular officers to ensure that an alien seeking a B2 visa has made arrangements for defraying the expenses of his or her visit such that he or she will not need to obtain unlawful employment in the United States.8 It is safe to assume that these arrangements may not include “performing skilled or unskilled labor” for a foreign employer while in the United States.

The B1 visa for temporary business visitors exists for purpose of allowing an alien to engage in certain work for a foreign employer while in the United States [see article]. The mere existence of this nonimmigrant category indicates strongly that the B2 visa category was not intended for this purpose.

Finally, the IRS Tax Guide for Aliens lists the scenario in which services performed for a foreign employer count as “U.S. source income” that is taxable [see guide].9 Income paid by a foreign employer will be taxable unless the following three conditions are met:

  1. The services are performed for a foreign employer that is not engaged in trade or business in the United States, or for an employer that has offices maintained in a foreign country or possession of the United States by a U.S. corporation, a U.S. partnership, or a U.S. citizen or resident.
  2. The services are performed for not more than 90 days while the alien is in the United States.
  3. The total pay for the services is not more than $3,000.10

Even if the work performed by a B2 visa-holder meets all three of the above conditions, we believe that any work by a B2 visa-holder for a foreign employer violates the rules of B2 status. However, the IRS Tax Guide for Aliens shows that in many cases, work performed for a foreign employer by a nonresident alien will count as “U.S. source income” that is taxable in the United States.

A person planning to visit the United States on B2 status should ensure that he or she has adequate financial arrangements such that work for a foreign employer while in the United States on B2 status would not be necessary. Because of the adverse immigration consequences that come from being found to have violated B2 status, it is far less damaging in the long run to shorten or delay a trip to the United States rather than to intentionally or inadvertently violate B2 status while in the United States.

Education is Not Authorized While on B2 Status

Enrolling in a course of study is impermissible while on B2 status.11 In order to enroll in a course of study, the B2 must change to F-1 (F1) or M-1 (M1) status.

However, as we reviewed from the FAM, a student may travel to the United States as a tourist and incidentally engage in a short course of study during the trip. Furthermore, an alien may obtain a B2 visa to temporarily go to school for avocational or recreational purposes. Language students who are engaging in a course of short duration with less than 18 hours of school per week may be eligible for B2 status. However, an alien who is intending to use the B2 visa for any of these purposes should be forthright about the details of his or her plans with the consular officer during the application process. This will help ensure that the activities on the trip are explicitly approved ahead of time, and mitigate the chance that the alien inadvertently violates the terms of B2 status.

A prospective student may seek to enter the United States on a B2 visa with the intent of looking at schools prior to applying for F1 status. In this case, the B2 visa may have his or her visa marked “prospective student” at the consulate.12 In order to do this, the applicant must demonstrate that he or she would meet the requirements for F1 status at the consular office. This will later allow the prospective student to change from B2 to F1 status.13 However, it is important to remember that the alien may not begin a full course of study until the change of status is completed. It is possible, although difficult, to change from B2 status to F1 or M1 status without being a “prospective student,” but the B2 visitor will have to demonstrate that he or she did not have “preconceived intent.” Please see our full article on changing from B status to F1 or M1 status [see article].

The 30/60 Day Rule

The 30/60 day rule is an adjudicative principle created by the DOS to help DOS officers determine whether a violation of B2 status within 30/60 days of entry indicates that an alien misrepresented his or her intentions in obtaining the visa [see article]. Although the 30/60 day rule is not binding on the Department of Homeland Security (DHS), it is often referenced as a guide for determining whether a B2 visitor misrepresented his or her intentions in obtaining a B2 visa [see article]. Such misrepresentation may lead to inadmissibility [see article]. An alien who violates the terms of his or her B visa status within 30 days of entry, or between 30 and 60 days of entry, may face especially adverse immigration consequences.14 9 FAM 392.9-4(B)(3) lists the status violations that will trigger scrutiny under the 30/60 day rule:

  1. Actively seeking unauthorized employment and, subsequently, engaging in unauthorized employment;
  2. Enrolling in a full course of academic study without changing status;
  3. Marrying and taking up permanent residence; or
  4. Undertaking any activity for which a change of status or an adjustment of status would be required, without changing or adjusting status.15

If the B2 visitor violates his or her status in one of the above ways within 30 days of entry, consular officials will be able to presume misrepresentation in his or her stated reasons for entry.16 However, it is possible to rebut the presumption of misrepresentation if the alien may provide evidence that shows clearly he or she did not obtain the B2 visa under false pretenses.17 If a B2 visitor violates his or her status after 30 days but within 60 days of entry, there is no presumption of misrepresentation, but consular officers may investigate further of the facts indicate that there was misrepresentation.18 After 60 days, there is no presumption of misrepresentation.19 However, USCIS may investigate whether a status violation indicates that the alien misrepresented his or her intentions at the time of entry regardless of when the violation occurred.

Advice: Staying in Lawful B2 Status

It is important for a B2 visa applicant to be forthright about his or her reasons for seeking a B2 visa at the consulate. If the consular official determines that a B2 visa would not be appropriate for the proposed reasons for the trip [see article], the alien may seek an alternative U.S. immigration option. Subsequent to being granted a B2 visa, it is imperative that the B2 visitor be aware of the restrictions on B2 status and ensures that his or her activities in the United States are consistent with those for which the B2 visa was approved for. If a B2 visitor is ever unsure about the rules for maintaining status, he or she should schedule a quick consultation with an experienced immigration attorney for guidance.

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  1. This decision cited DOS regulations that predate the ones that we will rely upon in this article. Nevertheless, the decision remains good law.
  2. 22 C.F.R. § 41.31(b)(2)
  3. This provision is for aliens who serve in the armed forces or the selected reserve of the ready reserve in designated periods of hostility.
  4. This provision is for aliens who served at least 1 year in the armed forces and meet certain other requirements in order to be eligible for naturalization.
  5. Note that the BIA rejected the respondent's assertion that he was an “unpaid volunteer” because the compensation he received “guarantees him a standard of living similar to that of many moderate-income wage earners.”
  6. Genco Op. No 93-61 (INS), 1993 WL 1504008
  7. See INA § 101(a)(15)(B); see also 22 C.F.R. § 41.31(b)(2) [does not include working for a foreign employer in the definition of “pleasure”]
  8. 9 FAM 41.31 N4.2
  9. Credit to the “Nation of Immigrators” blog [see “Resources and Materials”] for the pointer.
  10. IRS, Publication 519 (2014), U.S. Tax Guide for Aliens, “Chapter 3 — Exclusions from Gross Income”
  11. 8 C.F.R. §214.2(b)(7)
  12. 67 Fed.Reg. 18065
  13. Id.
  14. This applies to B1 visa-holders as well
  15. 9 FAM 40.63 N4.7-1
  16. 9 FAM 40.63 N4.7-2
  17. Matter of __, (AAO, Los Angeles, April 5, 2012) [In AAO (under DHS) proceedings, alien provided evidence that she only started work to support her sister who was diagnosed with breast cancer after her arrival on B2. The AAO found that she rebutted the presumption that she obtained the B2 visa with the intent to violate B2 status]
  18. 9 FAM 40.63 N4.7-3
  19. 9 FAM 40.63 N4.7-4

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 1084-87, 877-78, Print. Treatises & Primers.

Paparelli, Angelo, Immigration Lawyers Arguing: “Can I Work from Home for a Foreign Employer?” (blog). Nation of Immigrators. http://www.nationofimmigrators.com/employment-based-immigration/immigration-lawyers-arguing-can-i-work-from-home-for-a-foreign-employer/ [link]

Weissbrodt, David, and Laura Danielson. Immigration Law and Procedure in a Nutshell. 6th ed. N.p.: West, 2011. 243, Print. West Nutshell Ser.