Recent events at the Hyundai battery factory in Atlanta, Georgia, have raised significant concerns for employers and business travelers, following the arrests of hundreds of South Korean citizens. This situation echoes the earlier Infosys settlement over a decade ago, which highlighted potential pitfalls in the misuse of B-1 visas for skilled labor in the U.S.
While the specifics of the Hyundai case continue to unfold, it's generally believed that many of the foreign nationals involved were in the U.S. on business visas. Understanding the nuances of these visas is crucial for avoiding issues with business travel.
Understanding B-1 Visas and ESTA
The B-1 visa, or ESTA under the Visa Waiver Program (VWP), is intended for individuals visiting the U.S. for business purposes. Permissible activities under a B-1 visa include attending business meetings, negotiating contracts, and participating in conferences or seminars. Notably, these visas do not allow for gainful employment or work within the U.S., except under certain conditions.
The Hyundai Scenario: Visa Use Uncertainty
It’s unclear whether the Hyundai employees or contractors used the VWP, requiring minimal pre-vetting, or obtained B-1 visas through a consular application and vetting process. Furthermore, we do not know what these individuals declared to U.S. Customs & Border Protection upon application for admission to the U.S.
However, the U.S. Department of State’s Foreign Affairs Manual (FAM) outlines several provisions that might apply. For instance, 9 FAM 402.2-5(E)(1) pertains to after-sales services, such as installing, servicing, or repairing commercial or industrial equipment, or training U.S. workers for these tasks. It’s speculated that many of the Hyundai workers were in the U.S. under this provision, raising legitimate questions about their arrests, given these activities are typically legal.
Another relevant provision is the controversial yet valid B-1 in lieu of H (BILOH), detailed in 9 FAM 402.2-5(B), which we've discussed extensively in our 2013 post. Additionally, the standard FAM provision for business travel, 9 FAM 402.2-5(B), allows for consulting with business associates and engaging in commercial transactions.
Key Takeaways for Business Travelers
Regardless of the specifics, this incident underscores the importance of thorough preparation for business travel to the U.S. Consulting with an attorney about the legality of your proposed activities, trip duration, and travel frequency is crucial. By planning visits carefully and adhering to permissible activities, you can reduce the risk of complications with U.S. business travel.
Claire Pratt © Jewell Stewart Pratt Beckerson & Carr PC 2025