Can you donate plasma while on a B1/B2 visa? How does CBP decide whether an activity is considered unauthorized work?

Each year visitors to the U.S. use B visas for business activities (B-1) and tourism (B-2).  For over 30 years it has been a common practice for Mexican citizens to cross the U.S. border using a B visa or a BCC (Border Crossing Card) to donate plasma. They are paid about $40-$50 per donation.

In June 2021, U.S. Customs & Border Protection (CBP) released a statement that they view plasma donation for money as a violation of B1/B2 visa status under the rationale that it is labor for hire and constitutes unauthorized work. The main issues identified by CBP were that the plasma was extracted in the U.S. and accrual of profits was also in the U.S. The statement also clarified that this policy did not apply to B-2 visa holders coming to the U.S. for medical treatment or B visa holders coming to the U.S. to make blood, tissue or organ donations without being compensated.

Companies that sell plasma filed a lawsuit against the federal government challenging this new policy on many grounds and in September 2022 a preliminary injunction was granted against this policy. This means that for now, Mexican nationals may still enter the U.S. on a B visa or BCC to donate plasma and they may receive payment for their donation. However, this may change in the future depending on the final outcome of the lawsuit.

CBP’s approach to the issue of plasma donation is instructive when considering whether a particular activity will be considered unauthorized work in the United States. As shown by the reasoning in their statement about plasma donation, CBP is still guided by the framework set out in the case Matter of Hira. This decision was issued by the Board of Immigration Appeals and lays out the following factors to consider when determining if the activity should be considered unauthorized work:

• Is the principal business located abroad?
• Are profits ultimately received abroad?
• Is the activity performed by the foreign national in the U.S. secondary or supplementary to work that is primarily performed in the home country?
• What is the main purpose of the person’s visit to the U.S.?
• How frequently is the person coming to the U.S. and how long are they staying at each visit?

If you are unsure whether your activity in the U.S. will be permitted on a B-1 visa you should speak with an attorney to help you apply the factors above to your situation to determine if there is a viable argument that the activity is permitted while on B-1 status.