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B-1 Visitor for Business Visas: Where’s the Line Between           Business          and Labor?        Gary Chodorow      ...
Basic Requirements for a B-1 Visa1. Passport2. Residence in a foreign country and no   intention to abandon it3. Visiting ...
B-1 visa is for comingto the U.S. temporarilyfor “business” but not“labor”
Statutory goals:• Facilitate international trade and commerce  by allowing “business”• Protect U.S. workers against job co...
Clearly Permissible B-1 Activities1. Negotiating contracts2. Consulting with business associates3. Litigating4. Participat...
Is this businessor labor?
Matter of Hira: The Leading CaseFacts:• Hong Kong company employs tailor, pays his wages.• Company makes custom clothes in...
Rule: “Business” means1. U.S. activities “necessary” and “incidental” to   “international trade or commerce,” making it   ...
Example—Applying the Hira TestAccounting firm with US and PRC offices. USclient needs PRC accounting expertise. B-1 fromPR...
Specific Provisions
Commercial or Industrial EquipmentB-1 may install, service, or repair commercial orindustrial equipment or train US worker...
Is this businessor labor?
“Aliens Normally Classifiable H-3”1. Customarily employed outside U.S.2. Structured training program:   a. Training not av...
“Aliens Normally Classifiable H-1”        (aka “B-1 in Lieu of H-1”)1. Applicant’s qualifications meet requirements   for ...
ControversialRule in place for decades butseems inconsistent with statutoryban on labor by B-1s.But B-1 visas treated as a...
Efforts to Abolish or Change the   “Aliens Normally Classifiable H-1”                Provision1. 1993 INS and DOS proposal...
Strategies / ConclusionsConsider B-1. Advantages: easy, fast, cheap.Work visas (H-1, H-3, L-1, etc.):1. Generally require ...
HR/Legal should carefully analyze eligibility andoptions if B-1 would involve labor-like activities.Risks:  1.   Visa refu...
Corporate written policy on use of B-1 visas.Monitor compliance during visit if B-1 engagedin labor-like activities.Prepar...
Questions? Contact the authorGary Chodorow is chief representativefor the Beijing office of Frederick W.Hong Law Offices. ...
Frederick W. Hong Law Offices has a proven track record advisingcompanies and individuals on China and U.S. business law,i...
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B 1 visitor for business visas--permissible business versus labor

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Advice for company HR and legal departments (as well as visa applicants) about when labor-like activities are permissible "business activities" for a U.S. B-1 visa, versus when such activities are "labor" requiring application for a work visa.

By Gary Chodorow of Frederick W. Hong Law Offices

Published in: Business, Career
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B 1 visitor for business visas--permissible business versus labor

  1. 1. B-1 Visitor for Business Visas: Where’s the Line Between Business and Labor? Gary Chodorow June 15, 2012
  2. 2. Basic Requirements for a B-1 Visa1. Passport2. Residence in a foreign country and no intention to abandon it3. Visiting temporarily4. For “business”5. Realistic itinerary6. Adequate financial arrangements7. Not “inadmissible”
  3. 3. B-1 visa is for comingto the U.S. temporarilyfor “business” but not“labor”
  4. 4. Statutory goals:• Facilitate international trade and commerce by allowing “business”• Protect U.S. workers against job competition from foreign “laborers”
  5. 5. Clearly Permissible B-1 Activities1. Negotiating contracts2. Consulting with business associates3. Litigating4. Participating in scientific, educational, professional, or business conventions, conferences, or seminars5. Undertaking independent research
  6. 6. Is this businessor labor?
  7. 7. Matter of Hira: The Leading CaseFacts:• Hong Kong company employs tailor, pays his wages.• Company makes custom clothes in HK, mails to U.S. customers.• Ads with tailor’s travel schedule to various cities ask customers to visit his hotel.• He takes orders, shows swatches, takes measurements, collects payment.• Previously, company sold thru catalogs, customers measured selves. Complaints of poor fit.Held: Tailor’s activities are “business” not “labor.”
  8. 8. Rule: “Business” means1. U.S. activities “necessary” and “incidental” to “international trade or commerce,” making it reasonable not to hire a U.S. worker;2. wages paid by foreign source and principally works abroad; and3. no wages from a U.S. source.
  9. 9. Example—Applying the Hira TestAccounting firm with US and PRC offices. USclient needs PRC accounting expertise. B-1 fromPRC office comes to(a) advise, consult, and educate the US-based entity; and(b) work on the project (research, analyze, audit) under US office’s supervision.
  10. 10. Specific Provisions
  11. 11. Commercial or Industrial EquipmentB-1 may install, service, or repair commercial orindustrial equipment or train US workers to do so if:1. Purchased from foreign company.2. Sales contract requires the seller to provide these services.3. B-1 has specialized knowledge essential to the services.4. No remuneration from a U.S. source.5. Not performing building or construction work, but training or supervising others OK.
  12. 12. Is this businessor labor?
  13. 13. “Aliens Normally Classifiable H-3”1. Customarily employed outside U.S.2. Structured training program: a. Training not available in own country & will benefit H-3s career outside U.S. b. Not placed in normal position competing with US workers c. No “productive” activities unless “necessary” and “incidental” to training3. Qualified4. No wages from a U.S. source. Wages must continue to be paid by foreign employer.
  14. 14. “Aliens Normally Classifiable H-1” (aka “B-1 in Lieu of H-1”)1. Applicant’s qualifications meet requirements for H-1 visa.2. Customarily employed outside U.S.3. No wages from a U.S. source. Wages must continue to be paid by foreign employer.4. Perform “H-1” services in the U.S.
  15. 15. ControversialRule in place for decades butseems inconsistent with statutoryban on labor by B-1s.But B-1 visas treated as a“catch all” for groupsCongress seems to“generally intend” to admit.
  16. 16. Efforts to Abolish or Change the “Aliens Normally Classifiable H-1” Provision1. 1993 INS and DOS proposal to abolish.2. 2003 INS reorganized into DHS, with several new sub-agencies. CBP Inspector’s Field Manual silent. Creates uncertainty at airport.3. May 2011 DOS wrote to Sen. Grassley (R- Iowa) that DOS and DHS continue to discuss abolition or changes.
  17. 17. Strategies / ConclusionsConsider B-1. Advantages: easy, fast, cheap.Work visas (H-1, H-3, L-1, etc.):1. Generally require petition to USCIS—1 to 4 months.2. USCIS fees may exceed USD 1500.3. Requirements may pose a challenge
  18. 18. HR/Legal should carefully analyze eligibility andoptions if B-1 would involve labor-like activities.Risks: 1. Visa refusal 2. Refused admission at airport 3. Violation of status—deportability 4. Employer sanctions 5. Suspension from AmCham corporate visa program
  19. 19. Corporate written policy on use of B-1 visas.Monitor compliance during visit if B-1 engagedin labor-like activities.Prepare thoroughly for the application.
  20. 20. Questions? Contact the authorGary Chodorow is chief representativefor the Beijing office of Frederick W.Hong Law Offices. His practice hasfocused on U.S. immigration andnationality law since 1993. He is afrequent author and speaker onrelated issues, and a member of theAmerican Immigration LawyersAssociation.Beijing OfficeTel.: +86.10.6506.1180Email: gary@fwhonglaw.comWeb: www.fwhonglaw.comBlog: www.LawAndBorder.com
  21. 21. Frederick W. Hong Law Offices has a proven track record advisingcompanies and individuals on China and U.S. business law,intellectual property, and immigration law.The firm was founded in 1977 in Los Angeles. After developingbusiness in China in the 1980s, we became in 1993 the first U.S.law firm licensed by Chinas Ministry of Justice to open an officein Guangzhou. In 2002, the firm was authorized to open anotheroffice in Beijing.We make an effort to understand each clients business andgoals. Our attorneys are savvy, innovative, and focused ongetting results that meet our clients needs. Thats how weestablish lasting client relationships.

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