A Friendly Warning for Non-U.S. Citizens Who Rely on the U.S. Visa Waiver Program for Business Trips
It has become so much more difficult to obtain U.S. visas
for many non-U.S. citizens who wish to do business in the U.S. But even citizens
who are eligible for the U.S. Visa Waiver Program are discovering that entry
into the United States is not always guaranteed.
For those unfamiliar with the Visa Waiver
Program, it allows citizens of European countries, Chile, Japan, South
Korea, Singapore, Australia and New Zealand to travel to the United States to
conduct short business trips without getting a visa. All they have to do is obtain
authorization to travel to the United States through the Electronic System for
Travel Authorization (ESTA). This is a web-based system operated by the U.S.
Customs and Border Protection (CPB).
Admission, however, is not always guaranteed. For
example, if an applicant has traveled to certain prohibited countries (Iran, Iraq,
Sudan, Syria, Libya, Somalia and Yemen) in the last seven years, they will be
required to go to an embassy to get a visa. Other ESTA applications are denied —
without explanation — and applicants are required to obtain a visa. Additionally,
some applicants who might have been timely approved but simply waited too long to
file their ESTA applications may be denied boarding when they show up to their
flight into the United States. In fact, the CPB recently warned that
international travelers using the ESTA system should apply at least 72 hours before their international flight is scheduled to
the Visa Waiver Program only applies to people who would ordinarily seek a B-1
(temporary business visitor) visa. As we stated on this blog once before, a person
traveling on a B-1 visa cannot get paid for work in the U.S., except to the
extent that they are being paid a salary in their home country and traveling to
the U.S. for a business meeting that is part of their job in their home country.
A person using the Visa Waiver Program who is caught working in the United
States is likely to be disqualified from the program and may have trouble
getting a visa to enter the country.
Any U.S. company that is regularly visited by
colleagues from its European subsidiary or parent companies should remind its non-U.S.
citizen employees to file their ESTA applications well in advance of any
business trip to the United States. Otherwise, they may be unpleasantly
surprised when they are not allowed to board their previously scheduled flight
to the United States. These visitors should also be reminded that they are
limited in what they can do while visiting the United States and will need a
different visa (e.g., an L-1 or H-1B visa) if they actually need to work in the
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