There are two types of visitor visas, namely:
- B-1- This is a business visa.
- B-2- this is a tourist visa.
Not everyone visiting the U.S. needs to have a visitor visa. For example, there are several countries like the UK and Australia that participate in the Visa Waiver Program (VWP), also commonly referred to as ESTA. For a full list of VWP designated countries please see the following link:
https://travel.state.gov/content/travel/en/us-visas/tourism-visit/visa-waiver-program.html
Business visa (B-1)
The B-1 visa is designed for individuals coming to the U.S. primarily on business, for example, to negotiate a contract. Permitted activities include the following:
- Consulting with business associates.
- Negotiating contracts.
- Attending business meetings.
- Attending a business convention/conference.
- Settling an estate.
- Participating in short-term training
Tourist Visa (B-2)
The Tourist visa is exactly how it sounds and includes the following permitted activities:
- Tourism
- Visiting friends and family.
- Attending a wedding.
- Receiving medical treatment.
- Participating in amateur musical, sports, musical contests.
- Short course of study.
More importantly, I want to discuss the activities which are not permitted on a B-1/B-2. One of the most frequent questions I get asked is whether someone can work in the U.S. on a B-1/B-2 if the company is outside of the US. It appears that most people think that it’s okay for them to work in the US if they are not getting paid here. Unfortunately, this is not the case.
According to the IRS, Publication 519, if you are working for a foreign entity, the money you earn is deemed U.S. income unless it meets the following conditions:
- Total earnings for these services are less than $3000;
- You are not physically present in US for more than 90 days during the tax year; and
- Services are performed under contract with a non-resident alien individual, foreign partnership or foreign corporation not engaged in trade or business in the United States.
Unless you meet all three criteria above, you’re your income is deemed U.S. income and must be taxed accordingly.
If you are earning U.S. income whilst here on a B-1/B-2 this would be a form of unauthorized employment. Even if the income is deemed foreign income, it could still be a form of unauthorized employment. For example, California has a law that states you should be taxed where the services are performed which means if you are sitting in California working for a foreign entity you would have to pay tax in CA.
As a rule, if you are physically present in the U.S. and working, even for a foreign entity you need to have a valid form of work authorization. Working under these circumstances, whilst visiting on a B-1/B-2 would be a violation of your status and could jeopardize future applications or entries into the U.S.
Volunteering could also be a form of unauthorized employment if you are displacing a U.S. worker.
If you have questions regarding the above, please contact PLG Partner and Immigration Attorney Chris Prescott at cprescott@patellegal.com.