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I am a German software engineer and I do contracting work for a U.S. company. They are planning an offsite in the U.S where I actively work for the company during this time and I would like to join. I am considering applying for a B1 Business Visa for this purpose.

From my understanding, the B1 visa is for business-related travel to the U.S. for a temporary period, which seems to fit my situation. However, I am unsure about the specific eligibility criteria and whether my circumstances would qualify.

Could anyone provide some insights on whether I would be eligible to apply for a B1 Business Visa in this case? Any advice or experiences related to this would be greatly appreciated.

Thank you in advance.

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    How long will you be on the client site and what will you be doing there? I don't think B-1 is sufficient, since being paid for the visit by a US source is generally disqualifying, but if it's a short visit you might get away with it. Then again, if it's a short visit and allowable under a B-1 visa then you could just use the Visa Waiver Program/ESTA.
    – phoog
    Aug 20, 2023 at 13:26
  • @phoog "since being paid for the visit by a US source is generally disqualifying" Not sure it's that simple. A court case held that the distinction between business and employement is dependent on whether "the principal place of business and the actual place of eventual accrual of profits, at least predominantly, remains in the foreign country"
    – Crazydre
    Aug 20, 2023 at 14:35
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    @MaxHager "i was two months ago already traveling for three months in the USA (via ESTA), so ESTA is not eligible" There's no such rule. You can stay for 90 days at a time, but possibly the officer could shorten it in your case. Again, in your case, if you can't use ESTA, then you can't use a B1 visa either
    – Crazydre
    Aug 20, 2023 at 14:42
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    I hope "Max Hager" is not your real name and the picture does not show you. Don't show your real identity on the net, especially when asking such questions.
    – Karl
    Aug 21, 2023 at 3:14
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    @Karl Why not? He's not actively attempting immigration fraud or anything
    – Crazydre
    Aug 23, 2023 at 3:17

3 Answers 3

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There's no reason to apply for a B1 visa if you're eligible for the Visa Waiver Program.

As per court precedent - the Matter of Hira - the difference between "business" and "work" is stated to be whether "the principal place of business and the actual place of eventual accrual of profits, at least predominantly, remains in the foreign country"

So if (quoting phoog) "you have a separate legal entity in your place of residence that receives money from the US company and pays you", then it would seem to me (!) that you could enter with just an ESTA, declaring business as the purpose if asked (nowadays you don't even present your passport at most airports, but rather it's done through a facial scan). However I'm not entirely sure, and in case I'm wrong, a B1 visa won't help either!

So I'd recommend you to contact CBP at https://help.cbp.gov/s/questions?language=en_US - select topic "Entering or exiting the United States" - and ask if you can enter under VWP. Make it clear that you'll be doing one-off work for 2-3 weeks for a US company of which you're already a contractor in Germany, while your principal place of business and income remains Germany.

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  • thanks for providing the link help.cbp.gov/s/questions?language=en_US. this seems to be pretty useful.
    – yemy
    Aug 20, 2023 at 16:36
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    @MaxHager Like I said, very important that you're specific about what you'll be doing, and especially the fact that it's only one-off work for a few weeks for the same company you're already a contractor for, and that the US will NOT become a place of regular business or income for you.
    – Crazydre
    Aug 20, 2023 at 16:37
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    I have never had a reply from CBP through their questions website, email, or otherwise, that would give a definitive answer to questions like this. They are either vague or will not give an answer. Almost as if it's a legal thing where they are unable to give advice. It's up to the officer assessing you at a visa interview or at Port of entry
    – Midavalo
    Aug 21, 2023 at 1:26
  • Which court case? Why should we think it's relevant here?
    – phoog
    Aug 22, 2023 at 15:23
  • @phoog The "Matter of Hira" which became case law
    – Crazydre
    Aug 22, 2023 at 15:40
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Every year millions of people visit the US and do exactly what you are doing, and do it on VWP. I've done it. Most of my colleagues have done it. US CBP do not care and do not police this. However if you ask them specifically if it is legal they will be obliged to give you the legally correct answer, which may depend on precisely how you describe what you are doing.

The principal benefit of an "offsite" is not the work done. That could be done anywhere. The benefit is the interactions between the people there. You learn from them, they learn from you, you all agree on better ways of doing things and understand each other more. That's what the purpose of your visit is.

When CBP asks the purpose of your visit you say "meetings and training", because it is. Some work may be done, but it is incidental to the main purpose. And that's really true, not a convenient lie for immigration.

If you do some work and show it to your colleagues and you talk about it that's you educating them. Same when they show you their work. If you talk about how to do work that's meetings.

If you contact CBP and you misstate your purpose as "going there to work" they may well tell you your visit requires a work visa. That's going to cause you a lot of hassle, and may prevent your visit.

The VWP allows all the activities of the B1/B2 visa, so applying for B1/B2 will not help. If you can't do what you want on VWP you will need a work visa.

I was given this advice by the legal department of the multinational I worked for, so I'm not just making it up.

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  • You've done it under VWP? Thought you're Canadian
    – Crazydre
    Aug 22, 2023 at 15:41
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    I am. But I used not to be. Aug 22, 2023 at 21:33
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Unfortunately, Crazydre's answer concerning Matter of Hira is wrong. Here are some quotes from the Foreign Affairs Manual to illustrate how the State Department applies Hira when evaluating B-1 applications:

It can be difficult to distinguish between appropriate B-1 business activities, and activities that constitute skilled or unskilled labor in the United States that are not appropriate in B status. The clearest legal definition comes from the decision of the Board of Immigration Appeals in Matter of Hira, affirmed by the Attorney General. Hira involved a tailor measuring customers in the United States for suits to be manufactured and shipped from outside the United States. The decision stated that this was an appropriate B-1 activity because the principal place of business and the actual place of accrual of profits, if any, was in the foreign country. Most of the following examples of appropriate B-1 activity relate to the Hira ruling, in that they relate to activities that are incidental to work that will principally be performed outside of the United States.

Note "incidental to work that will principally be performed outside of the United States."

9 FAM 402.2-5(B) (U) Applicants Traveling to the United States to Engage in Commercial Transactions, Negotiations, Consultations, Conferences, Etc.

a. (U) Applicants should be classified B-1 visitors for business, if otherwise eligible, if they are traveling to the United States to:

(1) (U) Engage in commercial transactions, which do not involve gainful employment in the United States (such as a merchant who takes orders for goods manufactured abroad);

(2) (U) Negotiate contracts;

(3) (U) Consult with business associates;

(4) (U) Litigate;

(5) (U) Participate in scientific, educational, professional, or business conventions, conferences, or seminars; or

(6) (U) Undertake independent research.

Now perhaps one of these applies to the proposed "offsite" but I suspect that there's more to it since you say you will be "actively working." The following sections in the FAM detail several other permissible circumstances, most of which are irrelevant to you, but most of those that are possibly relevant include some version of the condition that the visa applicant

must not receive any salary or other remuneration from a U.S. source other than an expense allowance or other reimbursement for expenses incidental to the applicant’s temporary stay.

Now if you have a separate legal entity in your place of residence that receives money from the US company and pays you, your income likely is foreign source and you are more likely to be able to qualify to do this work in business visitor status. But beware: CBP passport inspectors may have different policy guidance, so even if a consular officer would issue a visa, an immigration officer might deny admission under the VWP.

Another thing to be alert to is taxation. Regardless of whether the income you generate by working in the US counts as US source income for the purpose of determining B-1 eligibility, it is certainly US source income under the Internal Revenue Code because earned income is generally attributed to the place where the work is performed. I'm not familiar with the Germany/US tax treaty, but the treaties I am familiar with also follow this rule.

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  • (+1) Great link! You write "Now if you have a separate legal entity in your place of residence that receives money from the US company and pays you..." Based on OP I'm assuming this to be the case. OP, could you please clarify?
    – Crazydre
    Aug 23, 2023 at 3:14
  • "CBP passport inspectors may have different policy guidance, so even if a consular officer would issue a visa, an immigration officer might deny admission under the VWP." Just phoned 6 CBP ports about this. All of them denied making any difference that isn't published between VWP and B visas in terms of admissibility criteria. OTOH, as to whether OP's situation is OK for VWP, 4 said yes and 2 said no (they all emphasised that their advice is only indicative and in no way binding, plus it could've been the opinion of those supervisors rather than the ports as a whole)
    – Crazydre
    Aug 23, 2023 at 9:43
  • @Crazydre I don't see anything suggesting a separate legal entity. I know that there are various legal arrangements for this sort of thing in various EU countries but I don't remember the details in Germany. It's a bit stupid, giving credence to such techniques of legal and accounting sleight of hand, but the US does seem to take these structures into account, which is certainly more significant than whether it's silly.
    – phoog
    Aug 23, 2023 at 11:42
  • @Crazydre "All of them denied making any difference that isn't published between VWP and B visas in terms of admissibility criteria": that's of course true; the VWP is explicitly intended for the same classes of visitors as B visas. But B visas have been stretched in ways that one would probably find difficult to get CBP to agree to (B-1 in lieu of...), and despite the law being the same, a CBP officer is more likely to have an idiosyncratic interpretation. By contrast a visa officer is supposed to consult with the office of the legal advisor--and has more time to do consider the decision.
    – phoog
    Aug 23, 2023 at 11:46
  • Very interesting, thanks for that! OTOH the risk of applyng for B1 is that, if refused, even if merely on the basis of being the wrong category, OP will be forever banned from VWP
    – Crazydre
    Aug 23, 2023 at 12:43

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