Limitations of Business Visitor Visas: A $34 Million Lesson

Immigration Update

Date: November 18, 2013

The U.S. Department of Justice (DOJ) and a global IT consulting and outsourcing company recently entered a $34 million settlement arising from allegations that the company misused B-1 business visitor visas and H-1B visas, and that it failed to properly complete related paperwork and I-9 forms. The DOJ has confirmed that this is the largest payment ever in an immigration case.

The allegations, which paint a picture of a company bringing foreign workers to the United States on short-term business visitor visas instead of work visas, suggest this was done to avoid the higher fees, more detailed paperwork and longer waits for a visa that would authorize employment. The settlement not only highlights the limitations of the business visitor visa, but goes further to address alleged misuse of the H-1B visa program and I-9 compliance issues. Following are some of the lessons to be learned from the settlement.

Activity, NOT duration, is controlling in determining eligibility of business visitors. The B-1 business visitor visa is intended to facilitate international business. It can be used to enter the United States to attend meetings, negotiate a contract, participate in short-term training or for other activities of a temporary nature that arise from international trade or commerce. The B-1 visa can be issued by consulates without pre-approval from the U.S. Citizenship & Immigration Service. Additionally, foreign nationals from many countries can enter the United States for up to 90 days as business visitors without any visa at all. Thus, the process to enter the United States as a business visitor is quick and typically does not require significant paperwork from the company inviting the foreign national into the country for the business trip.

To prevent the B-1 visa from being overused, the government has placed clear limitations on its application. The B-1 visa is not intended to be used for gainful employment in the United States – even short-term employment. Companies should be mindful of the risks associated with misusing the B-1 visa.

Are your consultants/subcontractors complying? A company should also review the practices of its consultants and subcontractors to confirm that B-1 business visitors are not being placed with the company to carry out activities that may rise to the level of employment. As best practices, a company should consider requiring its consulting companies to:

  • Attest to compliance with immigration laws
  • Provide evidence of immigration compliance training
  • Disclose any immigration violations or audits to which the consulting company has been subject
  • Attest that all foreign national consultants providing services in the United States will have a work-based visa

Are your I-9 forms in order? Erroneous completion or lack of completion of I-9 forms for employees was also at issue in the settlement. This is yet another example of the administration’s focus on worksite enforcement through I–9 audits. A company should review its I-9 policies and procedures and consider completing an audit of its I-9 forms if it has not already done so, as it is better to correct errors prior to any government audits that may occur. If a company has never had a third party audit its I-9 forms, this is also recommended, as an outside view can help capture errors that may result from misinterpretations and erroneous I-9 policies or procedures.

Are you following necessary requirements of the H-1B visa program? The settlement also addressed allegations of misuse of the H-1B visa program. Companies should review the immigration records for their H-1B employees. Are employees still performing the duties outlined in the H-1B petition? Are they at a work location covered by the Labor Condition Application (LCA)? Are the employees being paid the wage required by the LCA? Are policies and procedures in place so that any changes to the position (including location, duties, hours or pay) are reviewed prior to implementation to determine what is necessary for H-1B compliance? Is the LCA Public Access File complete?

FOR MORE INFORMATION

Thompson Hine’s immigration practitioners can assist companies in auditing their immigration practices to confirm compliance in all of the above areas.

For more information, please contact:

Staci M. Jenkins
513.352.6734
Staci.Jenkins@ThompsonHine.com

Sarah C. Flannery
216.566.5718
Sarah.Flannery@ThompsonHine.com

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