If you are a citizen of a VWP (Visa Waiver Program) member country, it is usually a no-brainer to travel to the USA by applying for an ESTA (Electronic System for Travel Authorization), thus waiving the need for a visa application.
The ESTA is designed for travelers visiting the USA, whether as a tourist or on business, who plan on staying in the country for periods of up to 90 days at a time. With ESTA, travelers are able to forgo all the hassle and added expenses of applying for a US visa. If you are travelling into the USA for pleasure and not business, then ESTA is almost definitely the best option for you. However, those travelling on business may find that it does not match their requirements…
Because it’s so much easier and cheaper, it is extremely tempting for business travelers to simply apply for ESTA and get on with the rest of their travel arrangements. An ESTA application is filled out within minutes, all online, and the response tends to come through just as quickly. With an approved ESTA, you will be eligible to visit any American city as frequently as you like, so far as you do not extend the two-year period following your ESTA approval, for up to 90 days or less. As long as your passport has not expired during this two-year period, you can reuse your ESTA as many times as you like. Once it expires, you can easily apply again online.
As tempting as it is to fill out your ESTA application and forget about dealing with visas, it is important to fully understand the questions on your application, and the proper terms of the Visa Waiver Program. Most importantly here, many travelers have a hard time understanding the difference between business activities that travelers can take part in under the VWP, and actual employment in the United States, something that under no circumstance can travelers do with ESTA. Some business activities that are considered permissible under the VWP are: partaking in meetings and consulting with business associates; attending conventions regardless of their industry, attending short training programs, a participating in conferences or trade shows. These are specific business endeavors that are not ‘employment’ per-se, as this is not permitted under the VWP, but do require the traveler’s physical presence in the United States. Furthermore, and as is generally a key criterion for getting travel authorization for business-related purposes, the business traveler’s presence in the USA is not depriving a US citizen of a work opportunity.
There is a gray area between business activities permissible with an ESTA and employment. For example, a traveler may be partaking in a training course that leads to some type of work. If said traveler is potentially taking a job away from an American citizen, this could land him or her into some trouble. Even something as innocuous as managing a team meeting can land a traveler into trouble, if said meeting was long enough to potentially be viewed as work that requires a longer-term visa. So even if you think you’re safe because you are not exceeding the 90-day limit of your ESTA, you may still be in breach of the ESTA conditions.
Then we have the matter of ‘frequent’ business travelers. This is what will most likely catch the eye of a border patrol agent, when a traveler is returning to the USA again and again for business under the Visa Waiver Program. Now, this is not to say that you cannot do this – as long as your adhering to the terms of the program, and what you are doing really does just classify as ‘business activities’, then you are perfectly entitled to do so with your ESTA, and will have no problem clarifying this with any border patrol agent who asks you about it. However, it is fundamental that you and your company are certain that the frequent business trips you take to the USA really do qualify for travel under the Visa Waiver Program, and, if this is not the case, prepare by applying for the appropriate business visa.
It is again very tempting to travel to the USA for longer periods and getting away on the technicality of leaving temporarily every 90 days, by crossing the border and coming back to ‘reset the clock’. This has been tried many times and while it sometimes works out, it often raises (justified) suspicions that have detrimental consequences. And even well intended back-to-back travels with an ESTA may raise eyebrows, so travelers should be as educated as possible regarding any possible infractions they may be committing. Furthermore, the ESTA form asks applicants whether they have ever been employed in the United States without authorization from the government; remember, it’s fundamental to keep your answers honest, as if a border patrol agent has any reason to believe you have not been truthful in your application, you will likely not be granted entry into the country.
With respect to this concept of crossing a border to ‘reset the clock’, it is relevant to point out that if you travel in to Canada, Mexico or neighboring islands from the USA and then return, this 90-day period is not reset. Instead, any time spent in these territories contributes towards this limit. The reason for this is specifically to avoid the issue of travelers crossing the border to reset their authorization. But back to business…
The alternative business travel permit into the USA is the B1 Visa. Visitor Visas into the USA generally need to be applied for in a country where the traveler is a permanent resident or citizen. If an application is made from another country, it runs a high risk of being rejected. A common cause for a B1 (business) or B2 (pleasure) visa rejection is the applicant not demonstrating evidence of social, economic or family ties to their country of residence, and this may raise concern that said traveler may be interested in permanently immigrating to the USA.
Another visa that travelers may often require without realizing it is the O-1 visa. This is the visa for ‘individuals with extraordinary ability or achievement’. This crops up frequently particularly in the entertainment sector. For instance, an actor or musician who is working in the USA for a specific project may be required to get an O-1 visa, but mistakenly believe that they can get away with travelling with an ESTA because the project lasts for under 90 days. This is not the case, if you are working for an American production of some sort, you need to have the right visa to do so.
Travelers entering the USA with a visitor visa are usually granted a 6-month admission on entry, and the maximum amount of time they can apply for their stay is 1 year. One may be able to obtain a six-month extension for their B1 visa once they arrive, so long as the traveler maintains his or her visitor status, and they have a justifiable reason for extending their stay. That said, these are complicated processes that are generally not advised if one can apply for the much easier ESTA option. In this regard, it is worth underlining that the ESTA cannot be extended under any circumstances; once you are in the USA under the Visa Waiver Program, you must leave within 90 days, with no exceptions. That said, it is also never less than 90 days – if your ESTA authorization expires whilst you are in the USA, you are still legally authorized to be there for 90 days following your date of entry. It is certainly not possible to travel to the USA with ESTA and then apply for a visa once you are there.
Hopefully this clears up some of the common queries about travelling to the USA with ESTA for business purposes. Bear in mind that one of the reasons for the Visa Waiver Program’s creation was to facilitate trade and business between the US and other countries. Therefore, there are a vast range of scenarios in which travelers can use ESTA for business reasons. However, the key thing to take away here is that you should be as informed as possible about what exactly your business travel consists in, and whether this adheres to the conditions of the program. If it does not, then you will need to apply for the corresponding visa with a US embassy or consulate.