B-1 VISAS: A USEFUL TEMPORARY OPTION
The B-1 visa is designed for business visitors to the United States who plan on staying a maximum of six months. The B visa is easy to apply for and is inexpensive compared to other nonimmigrant visas. It also provides a possible avenue for an international entrepreneur to engage in startup activities, such as forming a company, owning stock, being a member of the board of directors, attending board meetings, conducting market research, negotiating for funding with angel investors and venture capitalists, negotiating contracts, establishing office space, attending networking activities, and discussing ideas for new business products and services.
B visa holders must maintain their residence abroad. Moreover, a B visa does not provide work authorization or allow an entrepreneur to manage a U.S. business.
For example, participating in day-to-day activities of the business is not allowed. The question is whether the activities you perform for the business are activities generally performed by an employee in an “employer-employee” relationship. It is irrelevant for immigration whether you get paid or not; the activity that you perform is key for immigration status. The key to avoiding unauthorized B-1 activity is to create a level of separation between the daily activities of the company and the board/shareholder level decisions.
B-1 visitors should avoid business activities that are more “active” than “passive.” Hiring and managing workers located in the United States is definitely unauthorized. As a principal shareholder and board member, however, you can elect an officer, who could then hire and direct U.S. workers. Furthermore, major decisions concerning day-to-day activities could be presented to the board by the officer (your U.S. business partner) for approval. These business activities should not jeopardize B-1 status.
B-1 VISA AS A ROUTE TO LONGER TERM OPTIONS
If the B-1 entrepreneur has an established foreign company as well as a U.S. startup, and may be waiting for approval of an H-1B visa, they may be able to enter on the B-1 and perform work under the “B-1 in lieu of H-1” strategy. To meet the B-1 in lieu of H-1B requirement, the B-1 entrepreneur must be reside and work abroad in some professional capacity and enter the United States to perform H-1B-level tasks over a short time, not to exceed six months. They must be paid only by the foreign company.