Updated: Sep 13, 2018
If you have an employee based in a country outside the US or if you are a consultant or freelancer based outside the US, you may need to occasionally travel to the US for work related activities. The Visa Waiver Program (ESTA) permits citizens of 38 countries to travel to the United States for business or tourism for stays of up to 90 days without a visa. In return, those 38 countries must permit U.S. citizens and nationals to travel to their countries for a similar length of time without a visa for business or tourism purposes.
For individuals from countries not on this list, the B1/B2 tourism/business visa allows for short visits of up to 6 months for certain business related activities. The B1 business visa classification entails business activities other than the performance of skilled or unskilled labor. therefore, the issuance of a B1 visa is not intended for the purpose of obtaining and engaging in employment while in the United States.
The clearest legal definition of permissible activities under the B1 comes from the decision of the Board of Immigration Appeals in Matter of Hira, affirmed by the Attorney General. Hira involved a tailor measuring customers in the United States for suits to be manufactured and shipped from outside the United States. The decision stated that this was an appropriate B1 activity, because the principal place of business and the actual place of accrual of profits, if any, was in the foreign country. (See 9 FAM 402.2-5)
Below are a list of activities that are permissible under the VWP/ESTA and B1 business visitor classifications:
(1) Engage in commercial transactions, which do not involve gainful employment in the United States (such as a merchant who takes orders for goods manufactured abroad);
(2) Negotiate contracts;
(3) Consult with business associates;
(5) Participate in scientific, educational, professional, or business conventions, conferences, or seminars; or
(6) Undertake independent research.
If you are unsure whether your activity meets the legal definitions, you should consult with an immigration attorney prior to your work related travel to the US.
This post is for informational purposes only and should not be construed as legal advice.