Immigration Law Insights

While the Executive Order ("the Order") issued by President Trump on January 27, 2017, and temporarily halted by the District Court in the Western District of Washington and subsequently by the Ninth Circuit Court of Appeals, has been highly publicized for temporarily banning certain foreign nationals from the United States, it could also could impact business travelers from a variety of countries in a number of ways. Foreign nationals often use the business visitor (B-1) visa to enter the United States for short periods to engage in business activities that do not rise to the level of gainful employment. The Order could lead to increased scrutiny of business visitors and delay the issuance of business visas at consular posts worldwide. Familiarity with the Order's effect on the business visitor visa will help businesses minimize the potential negative impact on their bottom line.

Increased Scrutiny of B-1 Business Visitors

The B-1 visa is a versatile tool that allows foreign nationals to participate in a myriad of activities in the United States such as:

1. Engaging in commercial transactions not involving gainful employment;

2. Negotiating contracts;

3. Consulting with business associates and/or attending company meetings;

4. Attending board of directors' meetings of U.S. corporations as a member of the board;

5. Providing consulting services regarding the import or export of goods;

6. Installing, repairing, and maintaining equipment due under a contract; and

7. Training workers after the sale of commercial or industrial equipment in certain instances.

Business visitors cannot generally be compensated from a U.S. source, perform services that would otherwise have been completed by a U.S. worker, or engage in work that primarily benefits a U.S. entity (as opposed to benefitting the foreign national or a foreign employer in furtherance of international trade).

In order to obtain a business visitor visa, foreign nationals may be required to submit documentation demonstrating they are seeking to enter the United States for a proper purpose. The Order directs both the Department of Homeland Security and Department of State to review the information needed to adjudicate visa requests and could signify a heightened focus by the Department of State and Customs and Border Protection to ensure individuals entering the United States on a business visitor visa are doing so to engage in permissible activities. Businesses will need to ensure associated foreign nationals seeking to enter the United States on a B-1 visa are equipped with proper documentation both at the time of a visa interview and when attempting entry at a port-of-entry.

Suspension of the Visa Interview Waiver Program

The Order will also affect individuals whose business visitor visa is set to expire by suspending the Visa Interview Waiver Program. Under the Visa Interview Waiver Program, foreign nationals who had already been interviewed and issued a visa were at times permitted to renew their expiring visa without attending a second interview. The Visa Interview Waiver Program allowed thousands of individuals to avoid long delays associated with scheduling visa interviews at U.S. Consulates, particularly in the summer and holiday months. Businesses will need to plan ahead and should expect visa issuance delays as visa issuing posts are likely to become increasingly busy due to the additional interviews. Importantly, the Visa Waiver Program-which allows foreign nationals from certain countries to avoid business or visitor visa issuance -is not affected by the Order.

Conclusion

While the business visitor visa will continue to be utilized by foreign nationals seeking to conduct business in the United States, businesses will need to monitor the immigration climate as policies under the Trump administration are developed. Developing a sound immigration strategy early can help avoid small delays that could have long lasting business-related consequences.