Considering the costs of travel to another country, especially because of the value of currency other than dollars, visitors in the US are concerned about the activities they can perform to acquire some additional income to cover the expenses. However, the US Immigration Laws are strict and as a result of that, visitors have limited options to work in the US if they enter the country with a B1/B2 Visa.

In the first place, it is important to remember that both the B-1/B-2 and Visa Waiver Program have a basic requirement that the visitor has a permanent residence outside the US, in a foreign country. Basically, the purpose of this requirement is to have evidence that the visitor has no intention of abandoning his residence to stay indefinitely in the United States.

Considering this, visitor visas are often denied citing §214(b) of the Immigration and Nationality Act (INA). According to this rule, every person coming to the US with a nonimmigrant visa is presumed to be an immigrant until they establish, to the satisfaction of the consular officer at the time of application and the immigration officer at the time of application for admission (for instance, at the airport), that they are entitled to a nonimmigrant status.

Can I be denied admission for any reason?

The immigration laws are very broad in this scenario. Accordingly, consular officers and U.S. Customs and Border Protection (CBP) officers at ports of entry have great discretion to determine if an applicant either intends to stay permanently in the US. Therefore, a lack of careful planning may result in the denial of the visa or the revocation of the visa at the airport in the United States.

To avoid a denial, the visitor should establish at least the following:

• A residence in a foreign country, which they do not intend to abandon;
• That the intent to enter the United States is for a limited period of time; and
• That the sole purpose for the visit is to engage in legitimate activities related to business or pleasure.

Proving non-immigration intent

There are many different ways to prove you don’t have immigrant intent, that you just intend to visit for a limited period of time. To do it properly, G.A.M. Law Office can help you apply for your visa and design a strategy that fits your personal circumstances.

Both at the time of applying for the B visa and at the time of entry to the United States, a visitor must take into account that it is he, the foreigner who wishes to enter the United States, who must demonstrate that he does not wish to remain indefinitely in the country and that there is consistency between the purpose of the trip that the visitor stated in the visa petition, and the statements the visitor makes at the port of entry.

Having a residence, financial obligation and family ties abroad is always strong evidence of non-immigrant intent. This means that the visitor has a place of general abode overseas. Now, having a residence abroad does not mean, owning the home. It can be the visitor’s own home or the home of someone else, for instance, the visitor’s parents. However, ownership of real estate outside the US is even better than just having a residence.

Other useful evidence is documentation that proves that the visit has permanent employment, meaningful business or financial connections to his home country, close family relationships, or social or cultural ties indicating an intention to return. The main issue is this, as long as the visitor’s current intent is to return home, a consular officer may not deny a visa simply because they suspect that the person might be inclined to remain in the United States. However, a consular officer or an immigration officer at a port of entry could deny a visa or entry if the officer believes that the visitor intends to engage in unlawful activities.

The length of stay

The entry and permanence of a visitor who comes to the United States is subject to a maximum period of six months. Although a person can leave the United States after the expiration of six months and enter again, on many occasions a second visit in a short period of time may create suspicion.

Acceptable activities

Visitors to the US under a B1/B2 visa cannot engage in work in the United States. Let’s take a look of what “work” means and what a visitor should take into account when applying for their visa, making travel plans, and preparing their documentation.

United States immigration laws and regulations take a “broad-based functional view” of what constitutes “working” or “being employed.” Employment is considered “any service or work performed in the United States by an individual, which is not an independent contractor, for salary or other remuneration”. In this sense, “compensation” is defined as “some type of payment or exchange in kind to a person for a service or an expense”. Accordingly, a payment abroad that is made in exchange for services performed in the United States could be considered as “compensation” for the purposes of US laws regarding employment.

However, based on some decisions of the Board and Immigration Appeals, an activity may not be considered “employment” when the person or entity paying for a service maintains its principal place of business abroad, the visitor’s activities in the United States serve to promote the foreign employer’s interest outside the United States, and the visitor earns no income in the United States. Additionally, under the US immigration laws, it is also relevant to consider whether the person or entity that pays for a service maintains its main place of business abroad.

Here are some examples of permitted activities:

• Coming to the United States to engage in commercial transactions that do not involve gainful employment in the United States;
• Negotiating contracts;
• Consulting with business associates;
• Litigation;
• Participating in scientific, educational, professional, or business conventions, conferences, or seminars;
• Academic activities such as lecturing, guest teaching, or performing in an academic sponsored festival as long as the activities last no longer than nine days at any single institution or organization. An honorarium and incidental expenses may be paid as long as the B-1 visitor has not accepted such payment or expenses from more than five institutions or organizations over the last six months;
• Undertaking independent research;

About Remote Work

Considering the broad language of the US immigration laws, a visitor may not work in the United States, even remotely, under the following conditions:

• The activity carried out or the service provided generates income in the United States.
• The activity is carried out with the intention of defrauding immigration regulations, for example, avoiding the expenses and procedure of an H work visa.
• The employer in question is a company with operations in the United States, which could give rise to the argument that his principal place of business is in the United States.
• There has been a lack of truth regarding the purpose of the trip of the person requesting entry to the United States.
• The activities carried out could deny job opportunities to those who are part of the United States labor market.

Some important cases

There is minimal case law on deportations for the performance of unauthorized activities in which a foreign employer without material legal ties to the United States remunerates employees or contractors for conducting business or rendering services while physically present in the United States.

-United States ex rel. Krawitt v. Infosys Techs. Ltd., 342 F. Supp. 3d 958. In this case, the plaintiffs alleged that the Defendants, Apple Inc., a company organized under the laws of the United States, and Infosys Techs Ltd., a company organized under the laws of India, conspired to have two Indian nationals enter the United States on a B-1 business visa to provide training at Apple in violation of the US immigration laws.

Having found that both Infosys Techs Ltd. and the two employees maintained their principal place of business in Bangalore, India, the United States District Court for the Northern District of California, San Jose Division, held that immigration regulations had not been broken. In addition, Apple paid Infosys $50,000, to receive among other services, training in the United States, the money was not paid directly to the two trainers.

Matter of Hira, 11 I&N Dec. 824 (BIA 1965, 1966; AG 1966). In this case, a Hong Kong suit manufacturer sent Hira (his employee) to the United States to take purchase orders and measurements from customers for suit manufacturing in Hong Kong. Payment for the suits was remitted to the manufacturer in Hong Kong, who then paid Hira in Hong Kong.

Considering that Hira’s principal place of business was Hong Kong, that the suits were manufactured in Hong Kong, and that sales profits were accrued and settled by payments to an account in Hong Kong, the Board of Immigration Appeals decided that the activity in question was not considered “work” and the conditions of Hira’s vis B-1 had not been violated.

Matter of Camilleri 17 I. & N. Dec. 441, 441-42 (BIA 1980). In this case, a Canadian citizen truck driver employed by a United States corporation was permitted to enter the United States on a B-1 visa to pick up cargo in the United States and transport it back to Canada.