Travelling On B-1 Visa From Australia And Entering US As Consultant

Question

I am slightly confused about the B-1 visa and hope someone can point me to the appropriate documentation that can help clarify something for me.

I have signed a consulting contract with a US company for a set period of time (1 year) they have paid me in my native currency for the trip (Australian dollars), as well as providing accommodation and handling all flights. Because I have been paid for my trip to the US prior to flying and not during the trip, does this fall under the B-1 visa requirements for business/recreation travel?

While I am there I will be attending meetings and advising/monitoring the implementation of a large-scale web application. I might sometimes be required to write some code, but I will be primarily advising while I am there. I am offering consulting services, so this means the company will be running me through what they are currently doing. I will also be doing sightseeing while I am there as well.

Will I have any troubles entering the US? I am confused by the employment/business stipulation and don't want to be refused entry if I am travelling on the wrong visa. This is for a temporary stay, I will be there roughly 89 days and then flying back.

However, there is the possibility that I will be flying back and then flying back over for another 3 month stay. Because I have accepted money for my services in advance and won't be paid during, should I be okay?

On the official documentation for the B-1 visa it says:

A B1 visa can only be obtained abroad and applicants must show that the purpose of their trip is for a business activity that does not involve gainful employment or remuneration from a source within the United States.

Applicants must demonstrate they intend to remain in the US temporarily and that they will return to their home country at the end of their stay. B1 visa applicants may be required to show that they have sufficient funds to support themselves during their stay. Applicants may also be required to meet certain health and character requirements.

The confusion line for me is this: "that does not involve gainful employment or remuneration from a source within the United States." The company is a US company, they've paid me for consulting work prior and I will be flying over, but they won't be paying me anything while I am there. So technically I have received renumeration prior but not during.

My understanding is that because I am coming over as a consultant and advising on the implementation of a large scale web application, this would fall under the meetings/consultant and perhaps training clause in the business visa requirements.

Also worth noting is the fact I will be bringing my partner along with me. We are not married, but we are about to be. Because I will be gone for 3 months and then possibly flying back, I don't want to leave her behind (it's a long time to leave someone). She would be travelling on a B-2 (visitor visa alongside me). We are a part of the Visa Waiver Program because we are Australian residents, so we just need to register for the ESTA.

Am I just overthinking this or are my concerns valid? Anyone else been in a similar situation and can offer some advice?

Answer 1

The line between work and business can be blurry. You are allowed in for business, but not for work.

• Say you are in a retail store, you operate the cash register, and for each hour you spend in the store, the store (company) gives you (a human) $8 US less some deductions. Clearly, you're working.
• Say you run a consulting company and some of your staff will work on a contract for a US firm if you land it. You will not, you're the sales rep. You spend a few days meeting with people from the US firm, discussing the work your firm might do, nobody pays you anything, and then you leave the US. Clearly, you are in the US on business and not working.

See how this has nothing to do with how much time you put in or how difficult it is.

Now, where things are blurry is when you will be (or already are) the person doing the work on the contract. Are you there just to negotiate it? To meet about it (status reports and so on)? Or to do some of it? How many layers of company are there between the cheque the US people write and the increase in your personal bank account? In the past, I've been allowed in to do training when the US client paid a different US firm (a training provider) that paid a Canadian training provider, that paid the consulting firm in which I own shares, that paid me a salary. Part of the important subtleties involved was that my salary didn't depend on my making the trip or on anything I did on the trip.

It is almost impossible to get a clear ruling before you go. So much can depend on the border agent and the extent to which they believe you. But a shorter time spent on business makes it more likely to be business than work. Being part of a company rather than an independent contractor has a similar effect. And take care not to use the word "work" to describe your planned activities. Always call it "business".

Answer 2

I doubt this can fall under B-1. B-1 is generally for business activities that are part of your work for a foreign company, for which you receive a salary in a foreign country. You don't work for a foreign company and you don't receive a salary. Perhaps you can say that you are self-employed and your "company" has a contract with this U.S. company and you are there to fulfill the contractual obligations on behalf of your "company". But I doubt this will work.