Updated: September 25, 2018
Generally people who enter the United States on either the Visa Waiver Program (as ‘WB’ business visitors) or on a B-1 business visitor visa are allowed entry for business activities but not for ‘the performance of skilled or unskilled labor.’ The prohibition against ‘labor’ is found in the applicable statute, section 101(a)(15)(B) of the Immigration and Nationality Act. There are however numerous exceptions to this rule, set out in the Department of State’s Foreign Affairs Manual, at 9 FAM 402.2-5. Below is a brief discussion of four of the most commonly-encountered exceptions.
- Performance of professional services
This exception applies to otherwise-qualified applicants who seek to enter the US to perform professional services. These would-be entrants are not allowed to receive remuneration from a US source (other than an expense allowance or reimbursement) and must be customarily employed by a non-US firm that will continue to pay their salary during the temporary assignment in the US. This provision is referred to as the ‘B-1 in lieu of H-1B’ exception, and is often used by consultants of all varieties who travel to the US to perform short-term professional services on behalf of their UK employers.
Although in a May 13, 2011 letter to a US Senator the Department of State indicated that it plans to revoke or at least ‘substantially amend’ the regulation that establishes the B-1 in lieu of H-1B visa, for the time being the visa is still available.
- Paid training with some productive employment
Under certain circumstances travel to the US in order to participate in a training program is permissible for otherwise-qualified WB entrants or B visa holders, even if the training participants are paid and the training involves some productive employment. As above, the applicants may not receive remuneration from a US source (other than an expense allowance or reimbursement) and must be customarily employed abroad. In addition, the training must not involve ‘productive employment’ unless that employment is ‘incident and necessary’ to the training. The training must also benefit the applicant in pursuing a career outside the US.
- Personal/domestic employees
Household employees of either (a) certain US citizens on temporary assignment in the US or (b) foreign nationals in the US in nonimmigrant status, may work for their employers in the US on an annotated B-1 visa. This exception is not available to the personal employees of lawful permanent residents (‘green card’ holders).
Regardless of whether they are applying to work for US citizens or for nonimmigrant visa holders, applicants for B-1’s as domestic employees must show
- An unrelinquished residence abroad;
- At least one year’s experience as a personal or domestic servant; and
- Contract of employment signed by both parties.
Certain enumerated protections for the employee must be written into the contract, such as a guarantee that the employee will receive the greater of either the minimum or the prevailing wage. The visa will be annotated to identify both the employer and the applicable section of 9 FAM 402.2-5(D), with the aim of aiding the employee in obtaining a Social Security card.
The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 requires a consular officer to ensure that the alien applicant is aware of his or her rights under federal immigration, labor and employment law. The Department of State has prepared an instructive pamphlet which is to be given to the applicant. For a copy, click here.
- Installation, service and repair of commercial or industrial equipment or machinery
The Foreign Affairs Manual, at 9 FAM 402.2-5(E)(1), permits an otherwise-qualified business visitor to perform certain types of labor in the United States in connection with commercial or industrial equipment or machinery purchased from a company outside the US.. The business visitor may either install, service or repair the equipment or machinery, or train US workers to perform those services. The contract of sale must specifically require the seller to provide such services. Note: The performance of building or construction work is not permitted, even if the contract of sale purports to require the seller to provide those services.
In most situations US immigration law prohibits a business visitor (either a WB or B-1 entrant) from engaging in ‘skilled or unskilled labor.’ However, as seen above there are exceptions to this general rule. This short article cannot possibly cover all permutations of the law, and should not be relied upon as a substitute for legal advice tailored to the specifics of your situation. If you believe that legal advice would be helpful you should consult a qualified US immigration attorney.