There are four basic types of nonimmigrant visitors to the U.S. They are B-1 visitors for business, B-2 tourists or visitors for pleasure, WB waiver for business and WT waiver for tourist. B-1 and B-2 nonimmigrants typically require visas to enter the U.S. B-1 and B-2 nonimmigrants can be admitted for an initial period of up to six months, which is reflected on the Form I-94. They are allowed to file an extension of stay for up to an additional six-month period or an application to change their status to another nonimmigrant classification or immigrant status if they are so eligible.

WB (Waiver-Business) and WT (Waiver-Tourist) nonimmigrants enter the U.S. under a visa waiver program (VWP) and are visa exempt (see our Visa Waiver Program FAQ (pdf)); they are not required to apply for a visa at a U.S. Consulate prior to entering the U.S. Only citizens of certain countries are eligible for WB and WT entrances. Please see our FAQ on the Visa Waiver Program. Note that WB and WT nonimmigrants are barred from extending their stay in the U.S. or changing their status to another nonimmigrant or immigrant classification (exception: immediate relative of U.S. citizen). Furthermore, they are only admitted for a maximum period of stay of 90 days. WB and WT nonimmigrants are issued a special Form I-94 that is on Green Card stock and sets the terms of the nonimmigrant’s stay.

The Electronic System for Travel Authorization (ESTA) program now requires all travelers to the U.S. under the VWP to obtain pre‑registration prior to their travel to the United States.  ESTA registration is done through an online fully automated, electronic system https://esta.cbp.dhs.gov. The program screens passengers before they begin travel to the United States. Passengers must pay a nominal registration fee. VWP travelers are encouraged to apply for authorization as soon as they begin to plan a trip to the U.S., but in any event, no later than 72 hours before travel.  ESTA authorization is generally valid for two years, or until the traveler’s passport expires, whichever occurs first and is valid for multiple entries to the United States.  If ESTA authorization is denied, the traveler must apply for a nonimmigrant visa at the appropriate U.S. Embassy/Consulate.  Those travelers already in possession of a B1/B2 visa or other classification of visa are not required to register with ESTA.

The common factors for all visitors are that they are coming to the U.S. temporarily, they have a foreign residence abroad that they have no intention of abandoning and they will not work or study in the U.S. Persons who are coming to the U.S. primarily to benefit an overseas Employer enter as either B-1 or WB nonimmigrants; those persons who are entering for personal reasons enter as B-2 or WT nonimmigrants.

For B-1 and WB business visitors, the list of permissible activities includes engaging in commercial transactions not involving gainful employment in the U.S. For example, taking sales orders or making purchases of inventory or supplies for a foreign Employer; negotiating contracts; consulting with business associates; engaging in litigation; or participating in scientific, educational, professional or business conventions or conferences are acceptable activities. B-1s and WBs cannot receive a salary or payment from any U.S. source other than reimbursement for expenses accrued.

In determining if an activity would be acceptable under the B-1/WB category, it is important to determine where the principal benefit of the activity would accrue. For example, an individual employed by a foreign Employer, entering the U.S. to consult on specifications for a project that will be carried out in her home country, and receiving a salary from her overseas Employer would most likely be an acceptable B-1 entrance. However, an independent contractor entering from France to obtain contracts for software development projects that he will work on at home would not be an acceptable entry since this person is in essence setting up a U.S. business and receiving direct enumeration from a U.S. source even if he receives the payment at home. As long as the activity in the U.S. principally benefits the foreign Employer and the actual work is performed outside the U.S., the foreign employee would be engaged in legitimate B-1/WB activities. The USCIS and Department of State follow highly specialized guidelines for other permissible B-1/WB activities, including structured training programs.

One exception to the above is Canadian citizens. Due to the United States–Mexico–Canada Agreement (USMCA), Canadian citizens are also visa exempt. Many Canadian citizen visitors often times are “waived” through immigration and not issued a Form I-94. This can lead to problems in extending their stay and/or changing their status in the U.S. and it is generally safer to have the person simply return to Canada and reenter. Furthermore, the rules regarding B-1 activities for Canadian citizens are broader than those for other B-1 nonimmigrants although the remuneration and foreign residence abroad requirements remain the same as for other B-1 nonimmigrants.

The B-1/WB categories are generally useful for international corporations which require foreign employees to temporarily enter the U.S. for meetings, to scope projects and/or receive specialized short term training. Employer clients will typically encounter B-2 and WT entries as they pertain to employee family members entering the U.S. to visit.

Special note for Chinese Nationals Traveling on People’s Republic of China (PRC) Passports with Valid 10-year B1/B2, B1, or B2 Visas

On October 20, 2016, CBP formally identified the People’s Republic of China (PRC) as an Electronic Visa Update System (EVUS) country and designating B-1, B-2, and B-1/B-2 visas issued without restriction for the maximum validity period as designated visa categories when the visas are contained in a passport issued by the PRC.

Beginning in November 2016, all nationals of the People’s Republic of China holding valid 10-year B1/B2, B1 or B2 visas who travel to the United States on a passport issued by the People’s Republic of China must comply with EVUS requirements regardless of their current residence. EVUS is the online system used by Chinese nationals holding 10-year B1/B2, B1, or B2 visas.  Chinese nationals with other types of visas are not subject to EVUS requirements. Travelers using other travel documents, including Hong Kong SAR, Macau SAR, and Taiwan passports are not subject to EVUS requirements.

Please see the CBP FAQ re EVUS related issues here: http://www.cbp.gov/travel/international-visitors/electronic-visa-update-system-evus/frequently-asked-questions.
DISCLAIMER: This information is intended for clients of Jackson & Hertogs only. This is not intended to provide legal advice to non-clients of this firm. Nor will we respond to inquiries from non-clients. You should seek your own legal counsel in these matters.