On Dec 19 2018 by Lisa T. Felix

Frequent International Business Travel? Why the Visa Waiver Program May Not Be the Best Option

When it comes to international business travel, the United States theoretically still does have a few friends out there in the world. Citizens of these friendly countries are permitted to travel to the United States as a Visitor for Business or a Visitor for Pleasure without needing to appear in person at a United States consulate to obtain a visa stamp before travel. The Visa Waiver Program (VWP), established in Section 217 of the Immigration and Nationality Act, currently applies to citizens of 38 countries who meet certain criteria regarding their travel documents and background qualifications. Countries participating in the VWP must offer reciprocal visa-free travel to United States citizens, with similar requirements and terms. Most European countries, along with Australia, New Zealand, Korea, Japan, Singapore, Brunei and Chile, as well as Taiwan, qualify for participation.

The vetting of visitors who wish to participate in the VWP takes place online, before travel, through ESTA, the Electronic System for Travel Authorization. With some exceptions, ESTA travel authorizations are approved or denied within 72 hours (and sometimes within minutes) and are valid for two years. Note however, that ESTA travel authorization does not guarantee admission to the United States. United States Customs and Border Protection (CBP) officers determine admissibility upon a visitor’s arrival at an airport or other port of entry.

Travel through the VWP can be very convenient and attractive for the business traveler. The alternative is obtaining a B-1 Visitor visa stamp in the passport, which, requires the business visitor to schedule an in-person interview weeks or months in advance, depending on the capacity at the consulate. Furthermore, the nearest United States embassy or consulate may be hundreds or thousands of miles from home, necessitating advance travel for the required interview appointment.

There are a number of common pitfalls to using the VWP, and the consequences can be severe and long-lasting. It is thus highly advisable to discuss international business travel well in advance with qualified immigration counsel to minimize the risk to the business and to the business traveler.

As an example, it can be difficult to distinguish between business activities that are appropriate on the VWP, and activities that constitute skilled or unskilled labor in the United States which are not appropriate for business visitors. The following are examples of activities that are generally allowed on the VWP: meetings and consulting with business associates; attending scientific, educational, professional, or business conventions or conferences; attending short training programs; and negotiating contracts. Employment in the United States is not permitted.

However, many international business activities fall into a gray area. Take training or collaborative activities, for example. Training or collaboration that includes some component where work product will be generated, for example, is generally only appropriate on the VWP where the training will allow the person to do a job overseas, where the production of work is necessary and incidental to the training, and where the person is not displacing or replacing a US worker At the same time, meeting with direct reports who work in the United States and managing them may be deemed to require a work authorized visa, even though “meetings” are generally allowed.

Thus, eligibility for the VWP and the business traveler’s admission to the United States can depend on the description of the activity – and the meaning understood – at the critical, possibly rushed, stressful, and fatigued immigration inspection conducted (in English) upon arrival in the United States. Particularly where an overseas employee is traveling to the United States for the first time, or will be coming frequently for a longer-term project, expert advice on whether entry on the VWP is appropriate and pre-travel counseling regarding the entry process are both advisable.

Business visitors traveling on the VWP are generally admitted for 90 days. This period of admission may not be extended within the United States, and the individual may not apply to change to another immigration status if their objectives change. The visitor must depart the United States and obtain the required visa stamp abroad before returning to the United States for the new purpose. Back-to-back long periods of stay on the VWP and/or numerous frequent visits can raise the suspicion that the individual is abusing the opportunity for visa-free travel and/or is actually employed in the United States. These suspicions can cause long-lasting and possibly unpleasant difficulties for future travel.

In addition to botching the planned business activity, the immigration consequences of refused admission on the VWP can haunt the individual forever. In perhaps the best case scenario, the traveler may be permitted to “withdraw” his or her application for admission to the United States, as opposed to being “denied” admission by the CBP. However, withdrawal vs. denial is a technical distinction and may be well beyond the language abilities or legal understanding of the traveler to request. In either case, the decision is subject to the discretion of the CBP officer, whose determination cannot be appealed.

A failed admission changes one’s eligibility for ESTA and a new application must be submitted. The refused entry must be disclosed on future ESTA applications or when applying for a visa stamp at a consulate. In either case, we would generally advise most individuals in this situation to give up on the idea of visa-free travel and to plan on applying for a B1/B2 visa stamp at a United States consulate going forward.

Business travel on the VWP can be easy, fast, flexible, and convenient. But it is not for the unprepared. When international business travel on the VWP is anticipated, it is wise to confer in advance with immigration counsel for an analysis of the proposed activity, the abilities of the traveler to understand the potential issues and express him- or herself, recommended supporting documentation, and the option to obtain a visa stamp as a more conservative approach.

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

Reprinted with permission from the December 19, 2018 edition of the The Legal Intelligencer© 2018 ALM Media Properties, LLC. All rights reserved. 
Further duplication without permission is prohibited. ALMReprints.com  877-257-3382  reprints@alm.com.