Ensuring Smooth Entry: Managing Business Travel in the U.S.

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Meagan Dziura: Hi everyone, and welcome to another episode of the Ogletree Deakins Immigration podcast. I’m Meagan Dziura; I’m of counsel in our Raleigh, North Carolina, office. And joining me today is associate Derek Maka; he is located in our Boston office. How’s it going, Derek?

Derek Maka: Hey, Meagan. I’m good, how are you doing?

Meagan Dziura: Good. So, two members of our cross-border group recently did a really good episode of the Ogletree podcast on international business travel, and they talked about just business travel more broadly about employment considerations for employers when sending their employees on business trips. So, that’s a really awesome precursor to this episode, where we’re really going to dive in on the immigration aspect of business travel. We’re talking about what employees are actually allowed to do when they’re in the U.S. on business travel, and when do you cross the line into needing a work visa. So, all important things that employers should think about when sending a foreign national to the U.S. for business travel. Derek, let’s just start with the basics. If you’re coming to the U.S. for a short visit for business purposes, what type of visa is the one that typically comes to mind for immigration attorneys?

Derek Maka: Well, for short trips, the B-1 visa is really kind of the most common category that we look to. So, B-1 visitor visa is really for short-term travel, really limited business activities. Think of things like coming for business meetings, industry conferences, contract negotiations, or internal trainings, right? No hands-on productive work that really are involved with U.S. employment.

Meagan Dziura: Just to add in for the business travel, these things, they shouldn’t be paid for these things, right? So, someone shouldn’t be paying them while they’re in the U.S. for this business travel.

Derek Maka: Yeah, that’s right. So, any kind of remuneration, expenses, per diems, those typically would be covered by the person’s foreign employer; the person should remain on foreign payroll for the duration of these trips.

Meagan Dziura: I’ve heard before people talking about visa waiver countries and what ESTA is, is ESTA also a visa when people say, “Oh, I have ESTA I’m just going to come in on the visa waiver program?” Can you talk about that a little bit?

Derek Maka: Yeah, sure. So functionally, they’re very similar. So, when we talk about a B-1 visa, we’re talking about the stamp that goes into somebody’s passport. You go to a U.S. consulate or embassy abroad, attend an interview, and you get the visa and you’re able to travel into the U.S. Now, if you’re a citizen of what’s called a visa waiver country, so a list of countries that the U.S. has determined do not need an actual B-1 or B-2 visa stamp in their passport, you don’t have to apply for that visa at a consulate prior to visiting the U.S., right?
You would submit an online application under the ESTA, or as that just stands for electronic system for travel authorization. While ESTA is not technically what an immigration lawyer would call a visa, it has a similar effect. It’s a pre-authorization for you to apply for short-term entry into the U.S. when you come to a port of entry. But the rules and requirements for eligibility are effectively the same as a B visa. You need to be coming for short-term business activities or for tourist travel as well, and you will be inspected and admitted as they say at a port of entry under those terms.

Meagan Dziura: Yeah. And just to be crystal clear, neither the B-1 or ESTA allows you to work in the U.S. in a sense that people think of when they’re working in the U.S. You shouldn’t be doing productive work, and that would include being placed at a job site to do hands-on work or directly servicing U.S. clients of say, your foreign employer. And the other difference between the B-1 and ESTA, typically ESTA is just for 90 days, that’s how long you’ll be admitted for, whereas the B-1, usually the B-1, you’ll be admitted for six months. Those are some differences, as well. But both of them, like Derek said, strictly about temporary nonproductive activities and not actually entering the U.S. labor market.
So, where do people cross the line? Where do people get in trouble with this? Let’s say you’re flying to the U.S. from London for internal training, you are a UK citizen. So, you’re at the training, but your client calls, your client in the U.S., they have an issue at their site, and typically this would fall under your duties. You would help them from the UK, you’d help them remotely, but you’re there. You’re like, “Oh, great, I’m actually here. I’ll just drive to your location, I’ll start troubleshooting the say equipment at this client site.” So, Derek, is that allowed if I hear on a B-1?

Derek Maka: Yeah, that’s no longer a B-1 activity. Maybe you entered with legitimate purpose for these trainings, but once you start troubleshooting equipment, doing hands-on work like that, that’s crossed the line into productive employment.

Meagan Dziura: Yeah, exactly. Or say you’re coming to the U.S. to observe a short-term project with a U.S. team or a U.S. client, but then you have some great ideas for the project. You’re like, “Actually, I think I would manage this better than whoever is managing it in the U.S.” So, you actually take over the day-to-day management of that project while you’re in the U.S., whether that’s a week, whether that’s three months. At that point, you’re really not restricting yourself to allowed B-1 activities. If you are day-to-day managing something instead of just observing, that’s where you can really start crossing the line into those prohibitive activities.

Derek Maka: Yeah. And another red flag that could be an issue at entry is if you’re traveling back and forth into and out of the U.S. frequently, even if you have a valid B-1 visa or ESTA authorization, but you’re constantly entering the U.S., right? CBP could start getting suspicious at the frequency of entry, even if you’re maybe not being paid by a U.S. employer, you don’t reside in the U.S., they could see really frequent entries as a way to side skirt requirements for work authorization, a way to conduct productive work while entering the U.S. on a visa that does not allow for productive employment.

Meagan Dziura: Yeah. And this is especially important I think for employers that may have, say they have manufacturing in other North American countries, so they do have an ease of travel between the U.S. and say Mexico or Canada, and they may have people frequently coming to observe or to learn something new at a U.S. site, you have to be really careful with how often you have your employees traveling into the U.S. from those foreign locations. Because as Derek said, if you have someone coming in every week, that’s definitely going to be a red flag if they don’t actually have work authorization in the U.S. And this actually brings us to something we get asked about all the time, remote work, which is related to the business visa because a lot of times people who are here on a B-1, whether it’s for business purposes or they’re here on a tourist visa they may say, “Well, I’m not working in the U.S., I’m just working remotely for my foreign employer.” So, that’s okay though, right Derek?

Derek Maka: Nope. USCIS and CBP and all the relevant immigration agencies, all they really look to is your physical presence. Are you inside of the United States? And if you are, you’re bound by the restrictions of whatever visa or status you were given entry on. So, they’re not looking at your pay statements, who your employer is, whether you’re getting paid to a foreign bank account. What they’re really looking to is what are your activities while you’re in the U.S., and is it permitted under the terms of your current status? So, if you’re, as a visitor, if you’re responding to emails or joining conference calls with clients or customers or what have you, technically speaking, you’re conducting work inside of the U.S. without the proper work authorization. And that’s where concerns can start piling up in terms of what kind of activities you’re engaging in even if you’re working remotely.

Meagan Dziura: Yeah, exactly. And I think a lot of people ask, “Well, how would they know?” It’s true that CBP may not find out, but we would never want someone to take that risk and put themselves at jeopardy for future travel to the U.S. or for a future, if you do have an employment visa later on, you don’t want to have had any red flags raised previously by technically violating the status that you were in when you were here on a B-1. So, just when in doubt, don’t clock in, especially if you’re on vacation, use that vacation, don’t be working here without authorization. What are some signs that you may need a work visa, that you have sort of outgrown your B-1 or your visits on ESTA?

Derek Maka: Yeah. So, things can pile up, so if you’re traveling to the U.S. frequently in and out for business, you find yourself kind of naturally engaging in work while you’re here. If you’re traveling a lot, you obviously need to keep up with your actual day job. Or when you do travel here, things kind of morph. You’re here for a business meeting but then you get pulled into X, Y and Z project while you’re here having that ease of presence, let’s say co-workers or colleagues with the U.S. company. So, if any of those start becoming more and more common, that’s when it’s time to reassess. When things start creeping towards productive work, what would normally be considered engaging in employment or activities that “enter the stream of commerce in the U.S.” if we want to make it sound fancy, that’s when we want to take a look and see what kind of other options there may be available for a different type of visa or status that allows for a broader work authorization in the U.S.

Meagan Dziura: Yeah, and I would add, don’t wait for CBP, Customs Border Protection, don’t wait for them to flag someone when they’re trying to enter or leave the U.S. for business travel. So, we have had employers come to us in the past and say, “Well, this person has been coming in pretty frequently, it’s really just to observe activities or do a training.” But CBP has started looking at their entries because keep in mind, CBP does, electronically you have a travel history that they are keeping track of every time you enter and exit the U.S. So, if they see someone entering and exiting the U.S. frequently and that person has a B-1 or on the visa waiver program and they’re starting to ask questions, definitely you should be talking to your immigration attorney or employment attorney to discuss what the better option is for business travel. We want to preempt that from happening by really just sticking to what the allowed activities are.

Derek Maka: Especially if, sorry Meagan, so especially if you have employees traveling frequently right across the border in larger numbers, we also don’t want to risk CBP kind of flagging an employer at large, right? Saying if you’re coming into the U.S. under a visitor visa for company X, that can have broader implications of just a little bit more difficulty or scrutiny by border agents that may not have needed to happen in the first place if we were able to secure other types of work authorization.

Meagan Dziura: Yeah, that’s a really great point. So, protect not only your employees but to protect the employer, as well. So, what are some options if you’ve outgrown the B-1 or ESTA?

Derek Maka: Yeah, so one great option is what’s called an intermittent L-1. So, some of the listeners may have heard of your classic L-1 visas for executives, managers, or employees with specialized knowledge. This is kind of for intra-company transfers for individuals who’ve been working for a related company abroad for at least one year and are being transferred to the U.S. to serve in one of these managerial or specialized roles. The intermittent L is very similar, has a bit of a twist, though, so the regular L-1 typically has a five or seven-year maximum lifespan attached to it, where an extension can no longer be done after that max. But for an intermittent L, as long as the person is only in the U.S. for in aggregate less than six months of any given year, that maximum lifespan of the visa goes away.
So, you’re able to kind of extend the intermittent L-1 indefinitely because the immigration authorities and immigration rules recognize that there are some individuals who come here are on foreign payroll the whole time, but naturally, part of their job involves some aspect of work in the US even if it’s not the majority of their responsibility. So, in those situations, this intermittent L-1, if possible, is a really great option for longer-term work authorization for folks who don’t need to be here all that often throughout the year.

Meagan Dziura: Yeah, exactly. And the six months, like Derek said, it doesn’t have to be consecutively; the six months is going to be over the course of the year, so just keep that in mind because you wouldn’t want to go into a seven-month period, and you would essentially lose the intermittent part of the L-1 at that point. So, another really good option for specifically Canadians and Mexicans is the TN visa. So, this may be a better option if someone doesn’t meet the eligibility requirements of the L, so they haven’t worked for a related foreign entity for at least one year. The TN is usually pretty quick to process. For Canadians, you don’t actually need a visa in your passport. For Mexican citizens, you do need a visa. You can go to the consulate, but you can also apply at the consulate. You don’t necessarily have to file anything with USCIS prior to applying for this visa.
There’s no annual cap, so it’s not like H-1B, and there’s no limit to the number of extensions that someone can apply for. So, there’s no max stay for the TN. So, this may be a better option, especially if an employee is going to be commuting daily to the U.S., and if they’re working in a specified occupation, the TN has specific occupations that it is allotted for. So, this is something to look into as well. And I will also just add for both the TN and the L-1, there’s no minimum salary requirement. So, you also don’t need to meet a prevailing wage that you do for say an H-1B. So, that could be a concern for employers also if someone is being paid in foreign currency to meet that prevailing wage but that’s not required for either of these visas.

Derek Maka: Yeah, and either way, the TN or the L, they give you real work authorization in the U.S. You can still come and do traditional B-1 activities like attend meetings, et cetera, on these categories, but it just allows that additional flexibility to engage in other work while you’re here as well. So, it broadens the scope of permissible activities and would result in a much smoother entry to the U.S. in most cases, where CBP wouldn’t necessarily be questioning whether somebody is engaging in productive work since that’s permitted here. So, if somebody’s coming in on this kind of hybrid work meetings while also doing a work-type arrangement, then an L or a TN is definitely a good first place to look.

Meagan Dziura: Yeah, and I’ll just add that I think this topic is especially important right now because we are seeing more scrutiny at the borders with CBP. So, whether you are coming in through an airport, whether you’re driving in through the border, we are seeing CBP question people more frequently, just looking at the entries more closely. So, this is just something to consider again, ahead of a potential flag by CBP or potentially an employee having a really bad situation arise when they are trying to enter or when they’re trying to exit the U.S. It could happen in both situations. So, just to sum it all up, if you’re visiting the U.S. for business, keep your activities strictly limited, no hands-on work, no working for U.S. clients. And remember that remote work is risky; remote work is not permitted in the U.S. when you do not have work authorization.

Derek Maka: Yeah, and if the travel’s getting frequent, you’re coming here more and more often, or if your work is creeping over that line, it’s time to get a work visa.

Meagan Dziura: All right, Derek, thanks for joining me today, thanks everyone for listening. And as always, if you have questions, reach out on the Ogletree Deakins website. Thanks everyone.

Derek Maka: Thanks, everybody.

Meagan Dziura: Hi everyone, I wanted to jump on here. I’m actually recording this after my colleague Derek and I had already finished recording our business visitor visa podcast episode. And I’m jumping on because the Department of State has implemented a pilot program that actually does impact B-1 and B-2 visa applicants. So, an important update that I wanted to add to our episode. So, the Department of State has initiated a 12-month visa bond pilot program. This will start August 20th, 2025, and will end August 5th, 2026. So, this program targets B-1 and B-2 visa applicants from countries that the Department of State has designated as having high visa overstay rates, deficient screening or vetting information, or those countries that offer citizenship by investment without residency requirements. So, the pilot program states that any citizen or national traveling on a passport issued by one of these designated countries who is otherwise eligible for a B-1 or B-2 visa must post a bond in the amount of 5,000, 10,000, or 15,000, the amount will be determined at the time of their interview.
So, they will then need to submit a form agreeing to the terms of the bond through the U.S. Treasury’s Pay.gov interface. So, if they’re going to be approved for a B-1 or B-2 at their visa interview, they will be told the amount of the bond that they will have to post. The full visa bond amount will be returned to the applicant if they comply with their visa and bond terms, that includes departing from the U.S. on or before the stated expiration date. The visas subject to the bond will be annotated single-entry visas, so that’s different than most B-1 and B-2 visas. And those visa holders will be admitted for a maximum of 30 days. Also, different than typical B-1 and B-2 visas. If the visa holder breaches the bond conditions, including overstaying the amount of time that they’re allotted, the bond will be forfeited.
Currently, Malawi and Zambia are subject to the visa bonds under this program, so those are the only two countries that are currently subject. However, the Department of State can add to this list of bond subject countries with a 15-day notice. So again, currently only Malawi and Zambia are subject to this pilot program. There’s also designated ports of entry for those subject to this program currently. That’s Boston Logan Airport, JFK, or Washington Dulles Airport. So, please keep tabs on Ogletree, our blog site where the Immigration Practice Group posts updates like the update on this visa bond pilot program. We will be posting any updates if the Department of State is adding to the list of countries and adding to any other details for this bond program.

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