This document discusses the requirements and guidelines for a B-1 visa for temporary business visitors to the US. A B-1 visa allows entry for business purposes but not for labor. The document outlines the basic requirements for a B-1 visa and examines how to determine if a visitor's activities constitute permissible "business" or impermissible "labor." It analyzes a leading court case on this distinction and provides examples of activities that are clearly permissible or potentially problematic under the B-1 rules. The document notes ongoing debate around interpreting these rules and provides strategic advice for using B-1 visas appropriately.

1. B-1 Visitor for Business Visas:
Where’s the Line Between
Business
and Labor?
Gary Chodorow
June 15, 2012

2. Basic Requirements for a B-1 Visa
1. Passport
2. Residence in a foreign country and no
intention to abandon it
3. Visiting temporarily
4. For “business”
5. Realistic itinerary
6. Adequate financial arrangements
7. Not “inadmissible”

3. B-1 visa is for coming
to the U.S. temporarily
for “business” but not
“labor”

4. Statutory goals:
• Facilitate international trade and commerce
by allowing “business”
• Protect U.S. workers against job competition
from foreign “laborers”

5. Clearly Permissible B-1 Activities
1. Negotiating contracts
2. Consulting with business associates
3. Litigating
4. Participating in scientific, educational,
professional, or business conventions,
conferences, or seminars
5. Undertaking independent research

6. Is this business
or labor?

7. Matter of Hira: The Leading Case
Facts:
• 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. Rule: “Business” means
1. 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; and
3. no wages from a U.S. source.

9. Example—Applying the Hira Test
Accounting firm with US and PRC offices. US
client needs PRC accounting expertise. B-1 from
PRC 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. Specific Provisions

11. Commercial or Industrial Equipment
B-1 may install, service, or repair commercial or
industrial 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. Is this business
or labor?

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 training
3. Qualified
4. No wages from a U.S. source. Wages must
continue to be paid by foreign employer.

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. Controversial
Rule in place for decades but
seems inconsistent with statutory
ban on labor by B-1s.
But B-1 visas treated as a
“catch all” for groups
Congress seems to
“generally intend” to admit.

16. Efforts to Abolish or Change the
“Aliens Normally Classifiable H-1”
Provision
1. 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. Strategies / Conclusions
Consider 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. HR/Legal should carefully analyze eligibility and
options 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. Corporate written policy on use of B-1 visas.
Monitor compliance during visit if B-1 engaged
in labor-like activities.
Prepare thoroughly for the application.

20. Questions? Contact the author
Gary Chodorow is chief representative
for the Beijing office of Frederick W.
Hong Law Offices. His practice has
focused on U.S. immigration and
nationality law since 1993. He is a
frequent author and speaker on
related issues, and a member of the
American Immigration Lawyers
Association.
Beijing Office
Tel.: +86.10.6506.1180
Email: gary@fwhonglaw.com
Web: www.fwhonglaw.com
Blog: www.LawAndBorder.com

21. Frederick W. Hong Law Offices has a proven track record advising
companies and individuals on China and U.S. business law,
intellectual property, and immigration law.
The firm was founded in 1977 in Los Angeles. After developing
business in China in the 1980s, we became in 1993 the first U.S.
law firm licensed by China's Ministry of Justice to open an office
in Guangzhou. In 2002, the firm was authorized to open another
office in Beijing.
We make an effort to understand each client's business and
goals. Our attorneys are savvy, innovative, and focused on
getting results that meet our clients' needs. That's how we
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