Visas for business travelers, when used properly, are a valuable resource when an employer is interested in sending an employee to the United States or to another country as a business visitor. Employers should be aware of the permissible uses of business visitor visas to ensure their employee's entry and duration of stay as a business visitor.
In the United States, the “B-1 visitor for business” is the available visa category. "Business" refers to conventions, conferences, consultations, and other legitimate activities of a commercial or professional nature. Business does not include purely local employment or labor for hire. The law draws a sharp distinction between "doing business" and "working," though in practice deciding where business ends and working begins is not always easy. U.S. consular and immigration officers are particularly sensitive to activities that appear to go beyond "business" and spill over into employment.
To qualify as a “business visitor,” one must:
- be an employee of a company outside the United States and remain an employee of such a non-U.S. company during the business trip;
- remain on the payroll of such foreign (meaning, non-U.S.) company during the business visit;
- undertake a temporary visit with a firm end date (a specific date on the return airline ticket helps, as opposed to an “open ticket”); and
- engage only in “permissible activities” that do not amount to working for the U.S. company and performing a U.S. job.
The following are examples of clearly acceptable uses of the B-1 category:
- engage in commercial transactions that do not involve gainful employment in the U.S. (for instance, a representative of a foreign computer manufacturer coming to the U.S. to take orders in the U.S. for computers that are manufactured abroad);
- negotiate contracts;
- consult with business associates;
- participate in scientific, educational, professional, or business conventions or conferences; and
- undertake independent research.
Similar to business travel to the United States, business travelers to other countries should be aware of the rules regarding their travel and the limitations that exist for such business visits. Because the rules for each country vary, we recommend that business travelers determine in advance what types of activities are permissible during their stay. As a general rule business travelers should not engage in what can be considered "work" or "employment." While the line between "business" and "work" or "employment" can often be fuzzy, a general rule of thumb is whether the activities result in productive work, whether the home country company or the foreign company is providing remuneration, and whether the home country company or the foreign company is benefiting from the visit. If the visit might include what can be considered productive work, if the visitor is paid by the foreign company or if the visit will primarily benefit the foreign company, a work permit might be required instead.
Each country's rules are somewhat different and can vary from the general "rule of thumb" discussed above. Because China and Canada are popular destinations for business travelers, we offer a brief summary of the business visitor rules to point out the differences that exist between these two countries' laws.
- China. The Business Visa (F Visa) is issued to a foreign national who is invited to China for a visit, an investigation, a lecture, to do business, a scientific-technological and culture exchanges, or short-term advanced studies or internship for a period of no more than six months. Common business activities include negotiations, attending conferences, training sessions, and business meetings, but in contrast to the regulations for the U.S. B-1 visa and contrary to the general "rule of thumb," employees of a foreign employer may participate in short-term productive work as long as it is on behalf of the foreign employer and does not involve the primary work for the domestic Chinese company.
- Canada. To enter Canada as a business visitor, the visitor must meet the following qualifications: there can be no intent to enter the Canadian labor market, the activity must be international in scope (cross-border commercial activity), the visitor must be remunerated by the foreign employer, the foreign employer must be located outside of Canada and the profits must accrue outside Canada. Allowable activities include attending business meetings, providing after-sales service (including persons entering Canada to service equipment purchased outside of Canada based on an original or extended sales or service agreement); providing training, making sales and conducting negotiations (as long as the product or services are not made in Canada and the goods are not delivered in the same visit to Canada), and attending conferences or conventions. The rules surrounding business visitors in Canada are very specific. For example, if a Canadian company has directly contracted for services from a foreign company, the visitor performing the services requires a work permit, even though the visitor is not receiving direct remuneration from a Canadian source.