Beware of the B-1 Visa When Bringing Employees from Abroad
Mem Fox, a well-known and beloved 70-year old Australian children’s book
author, was harshly interrogated by Customs and Border Patrol (“CBP”) agents at
Los Angeles International Airport several weeks ago as she attempted to enter
the U.S. to deliver the opening keynote at a literacy conference.
Several weeks earlier, Henry Rousso — a French history professor who is
one of the world’s foremost experts on the Holocaust — received similar
treatment when he was detained for 10 hours at George Bush Intercontinental Airport
in Houston. Professor Rousso was on his way to Texas A&M University to give
Neither Ms. Fox nor Dr. Rousso was required to have a visa to enter the U.S.,
since they were coming from Visa Waiver countries.
They were no different from any other person who might be entering the U.S. with
a B-1 visa, the visa typically given to business visitors. The reason Ms. Fox
and Dr. Rousso are in trouble is that both admitted they were being paid an
“honorarium” for their lectures. While B-1 holders are not supposed to be
paid a salary from a U.S. source, there is an established exception for
honoraria paid by universities, non-profits, or government-research
organizations — an exception the CBP agents they dealt with were clearly
The first rule for anyone coming to the U.S. on a B-1 visa is that you
cannot get paid for your work in the U.S., except to the extent that you are
being paid a salary in your home country and traveling to the U.S. for a
business meeting is part of your job in your home country. You cannot receive
any payment in the U.S., unless you are getting paid an honorarium, in which case
you may want to have a copy of the United States Citizenship and Immigration
Services’ (“USCIS”) guidance on the issue, lest you encounter an uninformed CBP
The B-1 holder also needs to understand that there are limits on what
type of work they can do while in the U.S. While it is acceptable for non-U.S.-based managers to come to the U.S.
to discuss company-wide policies or to coordinate projects between the U.S. and
a non-U.S.-based affiliate, as a general rule, the B-1 holder should not engage
in any work — much less get paid for that work — if that work is being
controlled or supervised by the U.S. entity. For example, while an engineer
from a non-U.S.-based affiliate might come to the U.S. for a planning meeting
that deals with worldwide goals, he probably should not be brought in to help
design or build a section of a refinery in the U.S., except to the extent that
it might involve training U.S. employees on equipment that was manufactured or
designed by the engineer while working for the non-U.S.-based affiliate.
Bear in mind that CBP does have records showing each time a particular
B-1 holder has entered the country. (According to WikiLeaks, they may know more
than that). The non-U.S.-based employee who, over the last year, has only made
two or three visits lasting only several days is far less likely to be challenged
or detained than the frequent traveler who makes a one-week trip every month.
Finally — and this is something that I have only recently started
telling clients — if you have non-U.S.-based employees visiting the U.S., make
sure that they are prepared for the worst. While most CBP agents are
professionals, there are a few, as Ms. Fox and Dr. Rousso discovered, that
believe that they can act like schoolyard bullies. Employees
should also be cognizant of what they should say — or not say — if CBP challenges
their right to enter the country.