We have become aware that some web pages, that consider themselves immigration consultants (even though they are not US immigration attorneys), reporting that B1/B2 visitors are now eligible for work authorization.
FICTION - If it sounds too good to be true, it is. B1/B2 visitors are prohibited by law from performing skilled or unskilled labor while in the US.
USCIS recently confirmed that B1/B2 visitors can apply for jobs and attend interviews. However, a valid nonimmigrant status with work authorization is required before you can begin working. Examples of nonimmigrant categories that have automatic work authorization include:
Please note that the above categories will generally require a petition to be filed by the employer and approved before you can begin working. You may be eligible to apply for a change of status within the US or you may be required to depart the US, obtain a visa, and re-enter. You should consult an immigration attorney to find the option best suited to your circumstances.
Some categories also authorize spouses of the above category to hold work authorization. Contact an immigration attorney if you have questions about work authorization for your spouse.
You can also work in the US by applying for an Employment Authorization Document (EAD). You can submit a Form I-765 to obtain an EAD if you fall into one of the eligible categories, including:
- Granted Withholding of Deportation or Removal
- Pending Asylum and Withholding of Removal Applicants and Applicants for Pending Asylum under the ABC Settlement Agreement
- Citizens of Micronesia, the Marshall Islands, or Palau
- Deferred Enforced Departure (DED)
- Temporary Protected Status (TPS)
- Nicaraguan Adjustment and Central American Relief Act (NACARA) Section 203 Applicants Who Are Eligible to Apply for NACARA Relief With USCIS
- Dependent of TECRO E-1 Nonimmigrant
- F-1 Student Seeking Optional Practical Training (OPT) in a Position Directly Related to Major Area of Study
- F-1 Post-Completion OPT
- F-1 24-Month Extension for STEM Students (Students With a Degree in Science, Technology, Engineering, or Mathematics)
- F-1 Student Offered Off-Campus Employment Under the Sponsorship of a Qualifying International Organization
- F-1 Student Seeking Off-Campus Employment Due to Severe Economic Hardship
- J-2 Spouse or Minor Child of an Exchange Visitor
- M-1 Student Seeking Post-Completion OPT After Completing Studies
- Dependent of A-1 or A-2 Foreign Government Officials
- Dependent of G-1, G-3, or G-4 Nonimmigrant
- Dependent of NATO-1 Through NATO-6
- B-1 Nonimmigrant Who Is the Personal or Domestic Servant of a Nonimmigrant Employer
- B-1 Nonimmigrant Domestic Servant of a U.S. Citizen
- B-1 Nonimmigrant Employed by a Foreign Airline
- Principal Beneficiary of an Approved Employment-Based Immigrant Petition Facing Compelling Circumstances
- Pending Adjustment of Status
What can B-1 Business Visitors do?
Entering the US visa is not appropriate for anyone that plans to obtain and engage in employment in the US. Rather, the B-1 can be used by those entering to for business activities other than performing skilled or unskilled labor. USCIS provides the following examples as appropriate B-1 activities:
- Consulting with business associates
- Traveling for a scientific, educational, professional or business convention, or a conference on specific dates
- Settling an estate
- Negotiating a contract
- Participating in short-term training
- Transiting through the United States: certain persons may transit the United States with a B-1 visa
- Deadheading: certain air crewmen may enter the United States as deadhead crew with a B-1 visa
If you are planning on starting a new business in the US, B-1 entry can also be appropriate to lay the groundwork for your new business by signing contracts, leases, or other necessary preliminary actions. You cannot start working for your new company until you obtain immigrant status with work authorization.
B-1 entry may be appropriate for after-sales service when a contact exists between a foreign company, which is developing a product, and a US company where the product is being installed. In order to qualify under after-sales service, the tasks to be done in the US must be a part of the contract between the foreign company and US company. It is important to note that the work to be done must be included in the contract and the product being installed must be developed abroad; simply having a contract between a foreign company and a US company does not allow the foreign company to send employees to the US for any purpose.
The United States-Mexico-Canada Agreement (USMCA) specifically allows for lifetime installation and service if in contract as follows:
Installers, repair and maintenance personnel, and supervisors, possessing specialized knowledge essential to a seller's contractual obligation, performing services or training workers to perform services, pursuant to a warranty or other service contract incidental to the sale of commercial or industrial equipment or machinery, including computer software, purchased from an enterprise located outside the territory of the Party into which temporary entry is sought, during the life of the warranty or service agreement.
Other situations where business visitors are appropriate, as provided in the USMCA, are included below:
- Research and Design
- Technical, scientific and statistical researchers conducting independent research or research for an enterprise located in the territory of another Party.
- Growth, Manufacture, and Production
- Harvester owner supervising a harvesting crew admitted under a Party's law.
- Purchasing and production management personnel conducting commercial transactions foe an enterprise located in the territory of another Party.
- Market researchers and analysts conducting independent research or analysis or research or analysis for an enterprise located in the territory of another Party
- Trade fair and promotional personnel attending a trade convention.
- Sales representatives and agents taking orders or negotiating contracts for goods or services for an enterprise located in the territory of another Party but not delivering goods or supplying services.
- Buyers purchasing for an enterprise located in the territory of another Party.
- Transportation operators transporting goods or passengers to the territory of a Party from the territory of another Party or loading and transporting goods or passengers from the territory of a Party, with no unloading in that territory, to the territory of another Party.
- With respect to temporary entry into the territory of the United States, Canadian customs brokers performing brokerage duties relating to the export of goods from the territory of the United States to or through the territory of Canada.
- With respect to temporary entry into the territory of Canada, United States customs brokers performing brokerage duties relating to the export of goods from the territory of Canada to or through the territory of the United States.
- Customs brokers providing consulting services regarding the facilitation of the import or export of goods.
If you plan to seek employment in the US, including self-employment, contact the Law Offices of James D. Eiss today to discuss your options.