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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 depart.

Finally, 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 United States.

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This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.