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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 a lecture.

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 oblivious to.

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 agent.

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.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.