1.B-1 Visitor for Business Visas: Wheres the Line Between Businessand Labor?Gary Chodorow June 15, 2012

2. Basic Requirements for a B-1 Visa1. Passport2. Residence in a foreign country and no intention to abandon it3. Visiting temporarily4. For business5. Realistic itinerary6. Adequate financial arrangements7. Not inadmissible 3. B-1 visa is for comingto the U.S. temporarilyfor business but notlabor 4. Statutory goals: Facilitate international trade and commerceby allowing business Protect U.S. workers against job competitionfrom foreign laborers 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. Is this businessor labor? 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 tailors travel schedule to various cities askcustomers to visit his hotel. He takes orders, shows swatches, takes measurements,collects payment. Previously, company sold thru catalogs, customersmeasured selves. Complaints of poor fit.Held: Tailors activities are business not labor. 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. ExampleApplying 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-basedentity; and(b) work on the project (research, analyze, audit)under US offices supervision. 10. Specific Provisions 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. Is this businessor labor? 13. Aliens Normally Classifiable H-31. Customarily employed outside U.S.2. Structured training program: a. Training not available in own country & will benefitH-3s career outside U.S. b. Not placed in normal position competing with USworkers c. No productive activities unless necessary andincidental to training3. Qualified4. 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. Applicants 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. ControversialRule in place for decades butseems inconsistent with statutoryban on labor by B-1s.But B-1 visas treated as acatch all for groupsCongress seems togenerally intend to admit. 16. Efforts to Abolish or Change the Aliens Normally Classifiable H-1Provision1. 1993 INS and DOS proposal to abolish.2. 2003 INS reorganized into DHS, with several new sub-agencies. CBP Inspectors 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 / ConclusionsConsider B-1. Advantages: easy, fast, cheap.Work visas (H-1, H-3, L-1, etc.):1. Generally require petition to USCIS1 to 4 months.2. USCIS fees may exceed USD 1500.3. Requirements may pose a challenge 18. HR/Legal should carefully analyze eligibility andoptions if B-1 would involve labor-like activities.Risks:1. Visa refusal2. Refused admission at airport3. Violation of statusdeportability4. Employer sanctions5. Suspension from AmCham corporate visa program 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. 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. 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.