Beware of Limits on Workers in U.S. on Tourist Visa

By Michael H. Neifach on June 17, 2016

Noting media reports that up to 200 foreign workers hired by a Tesla contractor were able to come to the United States in tourist visa status to perform work at a construction project at a Tesla Motors Inc. paint facility in the United States, Senator Charles Grassley (R-IA) sent a letter, dated June 7, 2016, to the heads of the State Department, Justice Department, Department of Labor, and Department of Homeland Security questioning how such individuals would be eligible to perform work in the U.S. in B visa status.

USCIS provides that the B-1 tourist visa for business is intended only for business activities that are a “necessary incident” to business abroad. Such activities include attending meetings and conferences, engaging in negotiations, locating or entering into a lease for office space, and conferring with business associates.

The law specifically prohibits coming to the United States in B visa status to perform skilled or unskilled work. Under a B visa an individual generally cannot engage in any activity or perform a service that would constitute local employment for hire within the country. The State Department provides a narrow exception, for a “B in Lieu of H-1B,” where an individual otherwise meeting the H-1B requirements is employed by a foreign company and is coming to work at a U.S. client of the foreign company.

Employers should be extremely cautious when trying to staff projects using foreign workers here on a B visitor visa. Ensure these workers are not otherwise performing work requiring a temporary or permanent work visa.

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