2021 AILA Conference: Day 1, Session 3: The Two Sides of B-1 Visa Uses

Hi everyone, welcome to the last video for today. This is day one, session three, of the AILAs 2021 conference. It’s all about B1 visas, and I was expecting all the panels to talk about how amazing the B1 visa is and what are all the ways to use it and all the creative ways. But little did I expect there to be actually some disagreements on what is being used and how it’s being used. So this is a very exciting panel, let’s get to it.

[Tsang Intro Splash]

[0:30] So let’s dive in. So this is the disagreement: if you are a foreign worker, let’s say you’re from Japan or you’re from France, and you’re coming to the US for three or six months to Hawaii, and you are working here for your foreign company, just like many Americans during the pandemic, or before the pandemic, travel abroad and work remotely. The question is, is that permissible? Is it permitted that you travel to the US on your B1 visa or your ESTA and work remotely? Well, some panelists say it’s not okay, and some say it’s okay.

[1:09] Here’s the rationale: the people who say it’s not okay is because you’re still working here in the US, and the tourist visa or the B1 business visa doesn’t permit that. Your intent to be in the US, is not legitimate, and the FAM (Foreign Affairs Manual) doesn’t cover that. So, your visa could be canceled, and your ESTA could be denied, and you are not no longer going to be able to enter the US unless you apply for an appropriate visa. So, the cost is too high, just don’t do it. That’s the rationale.

[1:41] The people who say yes, you can do it, look at the FAM, look at the rules and say the people that we are preventing from working in the US on a tourist visa is people who are displacing US workers. For example, if you are a photographer coming to the US and engaging with your professional service, engaging in doing a wedding video or wedding photography, well US residents should be able to hire local photographers and not some foreigner to come here to do it. If you want to come here, get the appropriate work visa to do that, right? So, that is the typical concept of who’s not allowed to work in the US. But if you’re working here, working for a foreign employer, you’re working for Sony, you’re checking emails, you’re doing their account payables in the US, and you’re just enjoying your pina colada in Hawaii, well, that’s you’re not displacing anybody, so who cares, you are permitted to come.

[2:40] Those are the two camps. I side with the second camp, but let me explain a little bit more because I’ve engaged in so many discussions with clients about this particular subject. Even if it is permitted, right? So, even if I’m correct and the other camp is correct that you are permitted to work here, well, are you going to be able to explain in so many words to that CBP officer at that Hawaiian airport at 2 am? And do they believe you? Do they understand you? Or do they just hear “work,” “long time,” “deny your visa,” “make you go home”? So, for practical reasons, it is not a good idea to say that you are working in the US for your foreign employer and that you are paid abroad.

[3:29] So, the takeaway is maybe it’s legally permissible that you are able to be here. Again, that’s hotly contested, and we can take out the FAM books and debate, but practically speaking, it’s just so confusing because the B1 visa, the tourist visa, and the business visa are just so all-encompassing. It covers so many fields that it’s just too difficult when you say you are working here in the US for your foreign employer and that they are paying you and you’re not displacing any workers. How is the officer gonna check that? So, just give yourself a break and don’t say everything. Keep to the single intent. “I’m coming here to Hawaii. I love Hawaii. I’m gonna be here for three months.”

“Are you gonna be paid?”

“Nope, I’m not working for anybody.”

“Are you gonna be paid abroad?”

“Oh, you know, maybe my salary is still there.”

“Are you going to be working for them?”

“Maybe, it depends, but I took vacation.”

Keep your answers straight so that it’s clear and it’s easily understandable.

[4:26] What I just said cannot be constituted as a legal opinion. Please don’t rely on what I just said. This is supposed to be an entertaining video. I’m sharing my thoughts, but every client and every case is different, so please, if you have a situation that’s similar to this and you want to double-check, please hire a good immigration attorney. One of the panelists, they are amazing. Let them share with you what their opinions are. Okay?

[4:53] Alright, let’s continue. The second hot topic was B1 in lieu of H1B, so that means you want to come here on a B1 business visa in lieu, meaning you want to change to H1B when it’s permitted. That has been around for a long time. Our firm has done a lot of it. A lot of panelists were talking about it. They’ve done it. It was permitted. There were talks about getting rid of it because it’s so confusing for the officers, but since it never gained traction and it’s lost steam, so technically it’s still permitted, but again, it’s kind of confusing. I meet with the CBP officers here in LAX often. They don’t really like it that much, so if you have to do it, do a really good job, explain everything, maybe even get in touch with a supervisor at the airport that you’re flying into, let them review it first, just so they have pre-clearance and so when you fly in, it will be straightforward. It’s permitted but it’s complicated, so get pre-clearance. That’s the takeaway.

[5:49] The third thing that the panelists discussed was form shopping. Let’s say you are in France, you’re in Paris, and you want to go to the consulate, but the consulate is closed. Well, maybe you could go to the UK or maybe you can go to Shanghai or Tokyo. Other consulates, will they accept you? An interesting thing, one of the panelists said from Fragomen, they tried every single consulate and everybody denied their country representative to get the B1/B2 visa to be able to come in.

Now, that’s super interesting because a couple of months ago, I met with the CBP officers here at LAX in California. Not just me, a whole bunch of AILA attorneys in Southern California met with them, and one of the things that they said, and this blew us all away, is that the CBP officer, the immigration officer at the LAX airport, they can give you the entry stamp for the visa that you want to have, but you can’t get it from the consulate.

[6:51] Okay, this is mind-blowing because let’s say you’re from France, you need to come here on the L-1 or the O-1 visa, but the consulate is closed, so you can’t get in, and none of the other consulates around the world are accepting you, so you can never get the appropriate visa. What you can do is you can fly to LAX, the LAX officer will look at your documents, “Oh, you really should be permitted to enter as an L-1 or as an O-1.” Well, instead of entering as a B1, the visa that you have for B1 visa, well, I will allow you in as an L-1, stamp your passport, um, circumvent the whole consulate, and allow you. And they’ve been doing it for movie stars, Netflix shows because the movie industry has to go on even in the area of pandemic, and people need to fly in on their appropriate visas. So, that’s what they’ve been doing, and they offered it to people who are not movie stars. Isn’t that awesome? That is beautiful, LAX CBP. You win the prize. 

Now, I know we’re supposed to be talking about B1 visas, right? And so, form shopping has been impossible, but B1 in lieu of H1B, B1 in lieu of E2, if you have the appropriate documentation, you could enter and then change. That is amazing.

[8:10] And the last thing I want to discuss with you and I want to pick your brains because this is actually quite controversial. At this recent CBP meeting, all of the AILA attorneys, well, not all, a lot of the AILA attorneys here in Southern California met with the CBP officers at LAX, and we were asking them a question. If you come into the US as a B1/B2 visitor or B1 business visa, and then after 30 days, 60 days, 90 days, you want to change your status from a B1/B2 to an L-1 or to an H1B or to a different status, why is that not okay? Why is it not okay for you to come to the US to visit your boyfriend or your girlfriend, and after 60 days or 90 days, if they propose, and you change your mind, and you want to stay and file for adjustment, why is that not okay? Why is it not okay to say that, and then the CBP officer would deny your entry, cancel your visa, make you buy a return ticket, and fly back to your home country, Because it’s permitted under the law for you to do that, so why are the CBP officers denying people? That was the question posed.

[9:26] The answer from the CBP officers at LAX was that, well, then your intent is not clear. Your primary intent seems to be to adjust, and so your B1/B2 intent to come here as a tourist, we think, is invalid. So we’re going to deny you. And the counter-argument to that is, well, can’t somebody have multiple intents? Well, they didn’t accept that counter-argument, so they just said, “Nope, we’re not going to accept it.” And we kind of ended the discussion there. I don’t know what you think about this, but the takeaway from this meeting was that if you have one intent that’s permissible, even if you have legitimate secondary intents, let’s just not talk about it.

Again, it goes back to everything we talked about right at the beginning of this video. It’s a complicated situation. These CBP officers might have a couple of seconds with you. They have thousands of people that they have to see. They’re trying to make sure everybody complies with the law. If you have anything that’s complicated, unless you get the pre-clearance first from the supervisor beforehand, if you’re telling them multiple intents and motives, you’re gonna work here, and they marry somebody, and then adjust status, but you somehow you’re part of a totalitarian party, but it’s, you gotta waiver. No, you know what? Cancel visa, go home, and come back in their appropriate visa. Right, so that’s the idea. 

Just be clear on your primary intent that is permitted under the B1. The B1 is amazing. It covers so many different facets of life. You can negotiate contracts. You can come here to do investments. You can buy a company, you can sell a company. There’s all sorts of things that you’re permitted to do. Just don’t include the gray and shady areas.

[11:11] Okay, and that’s it for AILA’s first day 2021 conference. It’s been a fantastic day with three outstanding videos that we were able to provide. If you like what you see, if there’s any questions that you have about this, feel free to reach out to any of the panelists. I have their names and their firms all above. Feel free to reach out to them. If you have any questions for me, feel free to leave a comment below. I really try my best to watch these videos and share the gems so you don’t have to watch the whole thing, but these are outstanding. You really should check it out. If you have any questions about the B1 visa, feel free to like and subscribe, and we’ll catch you later.

Bye.