By Douglas Halpert and Christy Turovskiy

Law360 (July 31, 2020, 6:08 PM EDT) --

Douglas Halpert

Christy Turovskiy

There are few things worse for a business traveler than taking a long flight to the U.S. on a crammed commercial jet, being refused entry upon arrival by U.S. Customs and Border Protection, or CBP, and then having to fly all the way back to the country of origin.

Enduring this indignity with the extra anxiety associated with having a B-1 business visitor visa, B-2 visitor for pleasure visa or electronic system for travel authorization, or ESTA, visa waiver registration cancelled is even more stressful.

At this time, travel bans may materialize like pop-up storms. In this continuously evolving immigration climate such bans typically arise in the form of executive orders and presidential proclamations. A foreign national must always check to see whether a late developing ban or other dynamic may prevent U.S. entry. Foreign employers and travelers should also understand the structure and substance of the law at the foundation of the B-1 business visitor category.

Citizens of 26 countries qualify to utilize the visa waiver program based on their countries' high record of compliance with U.S. immigration law. They can register online via the ESTA portal, and seek U.S. entry for up to 90 days without a B-1 visa by presenting a round-trip ticket on a qualifying airline. Visa waiver participants still must convince the CBP inspecting officer that they meet the B-1 regulatory criteria for admission.

Citizens of all other countries must apply for and secure a B-1 or B-2 visa prior to admission.

The two tools which a company and its business travelers can utilize to reduce the risk of a denial of entry — or worse — are (1) knowledge of and compliance with the rules; and (2) collection of documentation that supports qualification for entry, to present if CBP challenges admissibility.

General Rules for B-1 Business Visitor Admission

There are four core requirements for a foreign national to qualify as a B-1 business visitor:

• The B-1 visa applicant, B-1 entrant or visa waiver traveler must have a residence in a foreign country, which the business visitor has no intention of abandoning;

• The B-1 traveler must intend to enter the U.S. for a specific, temporary period of stay;

• The B-1 traveler must receive compensation from a foreign employer or source, and not be paid a salary or other compensation by a U.S. employer or source, for activities performed while in the U.S. The B-1 traveler can receive allowances from a U.S. host for incidental expenses such as  lodging and meals; and

• The B-1 traveler must seek entry for the sole purpose of engaging in so-called permissible business activities, consistent with the B-1 category, plus any associated B-2 visitor for pleasure activity.

The gist of the B-1 category is that the foreign business visitor must be arriving to conduct a business activity that accrues predominantly to the benefit of a foreign employer, and must not be engaged in local U.S. employment.

Nonexclusive Examples of B-1 Permissible Activities

There is no all-encompassing list of business activities in which a B-1 business visitor can lawfully engage. Some of the more common business scenarios that fit the B-1 category include:

• Attending meetings to consult with U.S. business associates, provided the foreign national is attending the meetings as part of their foreign job and remains on the foreign payroll;
  

• Surveying potential sites for a business, hire lawyers and accountants, and secure a lease for business premises; however, the foreign investor may not start actively managing the U.S. business onsite;

• Attending a conference, trade show or business event as a representative of a foreign business;

• Visiting U.S. customers of a foreign enterprise for meetings, to sign contracts and to take orders for products manufactured outside the U.S.;

• Installing, servicing, or repairing commercial or industrial equipment sold by a non-U.S. company to a U.S. purchaser, where such post-sales installation, service and/or repair activity is specifically required by the purchase contract; and

• Participating as a trainee in a short-term U.S. training program that would qualify for an H-3 trainee visa, where such training is unavailable in the trainee's home country, and any productive labor is minimal and strictly incidental to the training — one cannot come to the U.S. in the B-1 category to provide training, only to be a trainee.

Documentation That Can Help Establish Admissibility

The foreign national has the burden of proving that they are admissible to the U.S. Even if the B-1 business visitor already has a B-1 visa in their passport that was issued by a U.S. embassy or consulate, or is exempt from the B-1 visa requirement because they are Canadian or from a visa waiver country, the visitor must satisfy the CBP inspecting officer upon arrival at a U.S. port of entry.

To do this, the individual should honestly, accurately and effectively answer the CBP officer's questions; and, if necessary, present documentary proof of visa qualification.

It is important to always be truthful in answering all CBP questions. Telling a lie or misleading the CBP officer not only may result in a refusal of entry, it may result in a charge of immigration fraud and precipitate a permanent bar to U.S. entry for any reason.

It is also important that the individual understand the significance of semantics when answering questions. If when asked about the purpose of the trip, the traveler indicates "work," an officer may conclude that the traveler is entering the U.S. to unlawfully perform U.S.-centric services for pay, should be refused entry, and be advised to secure a U.S. work visa.

Indeed if the traveler is planning to perform a U.S. job, they must be honest about it — though the traveler should not have used a B-1 visa to try to enter the U.S!

But if the traveler is coming to the U.S. to attend meetings as part of a foreign job, then using the term "work" is a misleading and incorrect answer, that could trigger a refusal of entry when the traveler should be admitted. Responding that they are coming on a business trip on behalf a foreign employer would be a more accurate and effective answer.

With respect to documentation, there is no one-size-fits-all-prescription. Generally, the best strategy is not to present any document other than the passport to CBP upon entry and to answer the questions.

The frontline CBP officer is under great pressure to make quick decisions about whether to admit the business visitors or refer them to secondary inspection for a more intensive examination.

Presenting a document without being asked increases the likelihood of being sent to secondary inspection straightaway because the officer does not have time to review it. It is best to carry documentation that proves admissibility in a the carryon bag — not checked through — so it is available if the CPB officer requests it or if it becomes apparent that one will be refused entry without presenting proof.

The type of documentation the traveler should have in their carryon bag depends largely on the variant of permissible business activity one intends to conduct in the U.S. One should have hard copy printouts of the documents — do not hand the CBP officer one's phone. Carrying printed copies best protects business and personal information.

Those employed by a foreign employer should bring a printout of their latest paystub. A letter from such foreign employer explaining the purpose of the trip and how it relates to the foreign job is advisable.

The traveler should also carry documentation indicating how expenses for the trip will be covered, such as a return trip plane ticket, hotel reservations and a bank account that will cover expenses. A letter or printed email from any host would also be helpful.

If one is attending a trade show or conference, a copy of the registration should be on hand. If one is coming to sell products made abroad to a U.S. customer, bring a copy of the product brochure and the invitation to meet with the customer.

If the visitor is coming to engage in a training program, an invitation letter with the itinerary for the training that aligns with the H-3 visa rules would be imperative.

Other Factors

The more often one enters the U.S. on a business trip, the more likely it becomes that a CBP officer will pull one aside to question whether one is spending so much time in the U.S., that perhaps one is crossing the line from visitor to U.S. worker.

The duration of trips is also a key factor. In addition, reporting to a superior in the U.S. or having U.S. subordinates, even when one is stationed at a company outside the U.S., may raise issues as to whether the job is sufficiently U.S.-centric to constitute local employment, requiring a work visa.

In this situation the company should try to identify profiles that may trigger a CBP challenge in advance of travel. Or it may be the case that the company really should be seeking a U.S. work visa because the would-be business visitor does not have a colorable argument fitting within the B-1 rules.

Trending Admissibility Problems and Related Solutions

The dynamic at U.S. ports of entry is changing rapidly in the current era of immigration proclamations and executive orders, issued with little to no warning. General counsel and human resources should be aware of the following trends in B-1 admissibility challenges that have been emerging in recent months:

• Due to the staggering number of layoffs due to the pandemic, CBP officers are particularly focused on the frequency and length of U.S. trips, and are more likely to threaten to refuse entry if they feel the visitor is spending too much time in the U.S and may be unlawfully working here. It would be wise to determine if some of the planned U.S. meetings and interactions can be conducted via Zoom, and limit the number and length of U.S. trips except where face-to-face interaction is truly necessary;
  

• CBP officers may be reluctant to admit a visitor on the U.S. payroll, even where that is natural because the U.S. parent company controls payroll for all foreign branch offices. If one cannot establish a foreign payroll — the best and safest solution — bringing evidence of an accounting charge-back to the foreign branch office may be critical to show that compensation is de facto paid from abroad;

• Due to the new public charge rule, CBP officers are more likely to challenge a visitor as to the source of funds for the U.S. stay. It is critical to have documentation on hand to show necessary housing arrangements and funds to cover meals and other expenses, as well as health insurance coverage; and

• Due to the increasing number of countries that are flights from the U.S. due to the pandemic, it is wise to be cognizant of any such bar. CBP may be unwilling to admit a visitor who will be unable to return to the country of origin due to an entry prohibition.

Conclusion

When walking up to the CBP officer's booth, it is normal for a business visitor to feel  apprehension about whether they will be admitted or refused entry. Thoughtful consideration of the rules and preparation for CBP inspection should reduce the risk of a problem arising in entering the U.S.

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Douglas Halpert is a partner and Christy Turovskiy is an associate at Hammond Neal Moore LLC.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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