In the past year, we have seen a plethora of issues and confusion at the US border for persons coming to the US as an engineer. As costs increase in the US, it is more and more advantageous to have foreign workers from Japan and elsewhere to come to assist with US operations. Of course, a work visa maybe the best option but not always possible. The B-1 may be used in limited circumstances for this purpose. Because the line between “work” and “a business visitor” is often unclear, foreign visitors often face issues, delays and sometimes rejection at the US border when travelling in ESTA.
If the business visitor obtains the appropriate B-1 visa, most of these issues will be avoided.
The Foreign Affairs Manual (“FAM”) is the manual used by the US Embassies to determine qualifications under this provision.
To qualify for a B-1 visa for the purpose of setting up equipment, the following criteria must be met:
- Commercial or Industrial Equipment: The engineer must be coming to the U.S. to install, service, or repair commercial or industrial equipment or machinery purchased from a company outside the United States.
- Contractual Obligation: The contract of sale must specifically require the seller to provide such services or training.
- Specialized Knowledge: The engineer must possess specialized knowledge essential to the seller’s contractual obligation to perform the services or training.
- Source of Remuneration: The engineer must receive no remuneration from a U.S. source. Payment should be sourced from abroad.
Engineers on a B-1 visa can engage in the following activities:
- Installation: Setting up commercial or industrial equipment or machinery.
- Service and Repair: Performing maintenance or repair work on the equipment.
- Training: Training U.S. workers to perform the installation, service, or repair of the equipment.
Restrictions
- Construction Work: Engineers on a B-1 visa are not permitted to perform actual construction work. However, they may supervise or train other workers who are performing construction work.
- Employment by U.S. Entity: The purpose of the visit must not involve employment by a U.S. entity or individual. The engineer should not receive a salary from a U.S. source.
Documentation Requirements
When applying for a B-1 visa, the following documentation should be prepared:
- Detailed Letter from Inviting U.S. Business: A letter outlining the business purpose of the visit, the specific activities to be performed, and the duration of the stay.
- Contract of Sale: A copy of the contract requiring the provision of services or training.
- Proof of Specialized Knowledge: Documentation evidencing the engineer’s specialized knowledge essential to the contractual obligation.
- Proof of Remuneration Source: Evidence that the engineer will be paid from abroad and not from a U.S. source.
- Proof of Temporary Stay: Evidence that the visit is temporary and that the engineer has a residence in a foreign country with no intention of abandoning it.
Port of Entry (POE) Considerations
Upon arrival at the U.S. port of entry, the engineer must be prepared for inspection by Customs and Border Protection (CBP) officers. The following should be noted:
- Eligibility Demonstration: The engineer must be ready to redemonstrate eligibility under the core B-1 requirements.
- Documentation Presentation: Present all relevant documentation corresponding to the business visit.
- Form I-94: Upon admission, the engineer will be issued an electronic Form I-94, Arrival/Departure Record, endorsed with the class and period of admission.
Conclusion
It is also difficult for companies to draw the line between the extent of business work performed on business trips and the extent of work that constitutes employment.
The B-1 visa is indeed a viable option for engineers visiting the U.S. to set up equipment, provided they meet the specific eligibility criteria and adhere to the restrictions. Proper documentation and preparation are crucial to ensure a smooth entry and compliance with U.S. immigration laws. Since each case is very fact specific, we suggest that companies consult with immigration counsel prior to embarking on this journey since the risk for misinterpretation may have dire consequences.