United States: State Department Proposes Changes To Business Visas Rules

The Department of State (DOS) has proposed changes to policy and regulations governing the use of short-term B-1 visas in an attempt to clarify, and in some cases limit, the use of these visas, which have long been a source of debate. The proposed changes involve ending the B-1 in lieu of H policy, and deleting the final two sentences of the definition of "business" for purposes of B-1 visas under 22 CFR § 41.31(b)(1). Despite this proposal, the core principles for analyzing appropriate B-1 visa usage would remain unchanged. The proposal is scheduled to be published in the Federal Register on October 21, 2020, and would go into effect after a 60-day comment period. Written comments are due by December 21, 2020.

B-1 visas, which are commonly used nonimmigrant visas for temporary business visitors, allow a foreign national to travel to the United States for a period of six months, which may be extended to a total of one year. The activities allowed under a B-1 visa are less clear. While the Immigration and Nationality Act states that a B-1 visa holder may not engage in "skilled or unskilled labor," 8 U.S.C. 1101(a)(15)(B), neither statute nor regulation defines the term "labor." Instead, the rules regarding permissible activities under a B-1 visa are flexible and based on a four-part test from a 1966 Board of Immigration Appeals case known as the Matter of Hira, which focuses on the context of an activity and not the particular task to determine whether it is proper. The Hira test has been endorsed and/or adopted by various courts and agencies, including the DOS's Foreign Affairs Manual (FAM). See 9 FAM 402.2-5(A) ("It can be difficult to distinguish between appropriate B-1 business activities, and activities that constitute skilled or unskilled labor in the United States that are not appropriate on B status. The clearest legal definition comes from the decision of the Board of Immigration Appeals in Matter of Hira, affirmed by the Attorney General.").

Under the long-standing B-1 in lieu of H policy, individuals who would qualify for H-1B visas (highly skilled workers) or H-3 visas (trainees) are allowed, in certain circumstances where the remuneration or source of income for services performed in the United States continues to be provided by the business entity located abroad, to travel on a B-1 visa to work or receive training. See 9 FAM 402.2-5(F). According to DOS, about 8,000 B-1 visas are issued annually under the B-1 in lieu of H policy. The policy has endured despite being the source of disagreement for some time. For example, DOS and INS proposed to eliminate the policy in two notices of proposed rulemaking published in 1993. 58 FR 40024-30 (July 26, 1993) and 58 FR 58982-88 (Nov. 5, 1993). Neither agency finalized its rule. Interagency discussions about the policy continued. See 12 STATE 101466, reproduced at 89 No. 42 Interpreter Releases 2013 (Oct. 29, 2012) ("The B-1 in lieu of H-1B and H-3 guidance in 9 FAM 41.31 N11 is under review in an interagency process, but remains in effect until further notice."). In the current rulemaking, DOS notes that, among other goals, ending the B-1 in lieu of H policy would further the Trump Administration's Executive Order 13788, Buy American and Hire American. See 82 FR 18837 (April 21, 2017). Nevertheless, DOS made clear that "[t]emporary visits for business activities that are consistent with Matter of Hira will still be permissible purposes for B-1 visa issuance under this proposal."

In addition to proposing an end to the B-1 in lieu of H policy, DOS also aimed to "increase clarity and transparency by removing confusing and outdated language about the scope of activity in the United States that is permissible" under B-1 visas by deleting the final two sentences of the definition of "business." Those sentences have been part of the definition since 1952, though DOS now views them as confusing and inconsistent with subsequent immigration laws. The first proposed change is to delete the following sentence: "An alien seeking to enter as a nonimmigrant for employment or labor pursuant to a contract or other prearrangement is required to qualify under [an H visa]." See 22 CFR 41.53(b)(1). DOS proposed deleting this portion of the definition for several reasons, including that "labor" is prohibited under a B-1 visa regardless of whether a contract is in place. Indeed, DOS noted that the court in a recent decision regarding the use of B-1 visas, States ex rel. Krawitt v. Infosys Technologies Limited, Incorporated, 372 F. Supp. 3d 1078, 1086 (N.D. Cal 2019), dismissed outright an argument that the use of B-1 visas was improper there because the visa holders performed training activities pursuant to a contract. DOS further proposed deleting the sentence because there are other visa types in addition to H visas that allow for labor to be performed by visa holders. Second, DOS proposed deleting the sentence that states: "An alien of distinguished merit and ability seeking to enter the United States temporarily with the idea of performing temporary services of an exceptional nature requiring such merit and ability, but having no contract or other pre-arranged employment, may be classified as a nonimmigrant temporary visitor for business." See 22 CFR 41.53(b)(1). DOS suggested this change largely relates to entertainment professionals, whose activities have, as a matter of practice, long been excluded under B-1 visas in favor of other visa types, such as O or P visas. 

Under DOS's proposal, the new definition of "business" for purposes of a B-1 visa under 22 CFR § 41.31(b)(1) would be as follows:

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