Almost everyone[i] who enters the U.S. for business visits must either (a) have a B-1 visa (which may include a B1/B2 visa) or (b) be eligible to enter without a visa under the Visa Waiver Program. If you have a machine-readable passport and are from one of the countries in the Visa Waiver Program, you may be able to seek admission to the U.S. for a business visit without the need to obtain a visa.
More than 19 million travelers visit the U.S. each year using the Visa Waiver Program. But don’t purchase your round-trip ticket until (1) you know that your trip fits the B1/B2 standards, (2) you know that you can accomplish your tasks within 90 days, (3) you have registered for ESTA, and (4) you have confirmed that you or your travel history do not eliminate your eligibility.
B-1 or B1/B2 Standards
Business trips to the U.S. on behalf of a foreign employer are classified as “B-1” entries. Pleasure trips are given the “B-2” classification. B1/B2 allows for both activities.
Your activities must be considered “doing business” on behalf of your foreign employer, and not “working” in the U.S., providing a benefit to a U.S. entity, to fit within the acceptable standards for a B-1 admission. “Doing business” may include negotiating contracts, meeting with business associates, attending conferences and trade shows, etc. “Work,” which is not allowed under the B?1 standard, includes providing labor and/or performing services in the U.S. for compensation, with the benefit of those services accruing in the U.S.
Visa Waiver Program Admission
Visa Waiver Program admission is for ninety (90) days, no more, no less. If your business cannot be concluded within that timeframe, you may want to consider applying for a visa at a U.S. consulate instead of using the Visa Waiver Program. Admission with a visa can be for a period of up to six (6) months or even more, and extensions of stay can be applied for. Extensions are not available to those admitted under the Visa Waiver Program.
There is no specific limitation established regarding the number of times a person can use the Visa Waiver Program to seek admission to the U.S. during any particular period of time. This is different than in some countries, which may limit the time you are actually allowed to be in the country over a specific period of time, such as those that allow no more than ninety days of being present in the area within a 180 day period.
Electronic System for Travel Authorization (“ESTA”)
Registration for ESTA is quick, inexpensive, and easy to update. ESTA requires the electronic submission of biographic, travel and credit card information. An application may be submitted at any time prior to travel, though it is recommended that travelers apply when they begin making travel plans. It is at the airport, before boarding, that the carrier verifies that the traveler has an approved ESTA on file with the U.S. government.
Recent Changes that may Restrict Participation in the Visa Waiver Program
New standards have been imposed on the Visa Waiver Program that warrant your attention. The enforcement of these may result in delays in admission and/or the need to apply for an actual visa so as to be authorized to travel to the U.S.
Beginning in late 2015, individuals who have been present in Iraq, Syria, Iran, or Sudan (or other countries designated by the Department of Homeland Security (“DHS”) as supporting terrorism or “of concern”) at any time on or after March 1, 2011, are not eligible to participate in the Visa Waiver Program. Those individuals may still be eligible to travel to the U.S., but they must apply for an actual visa and submit to an interview at a U.S. consulate.
ESTA-registered travelers who have traveled to or been present in the countries at issue are likely to be notified of revocation of their ESTA by the email address provided as a part of the ESTA application. Those who receive the revocation email shortly before an urgent business, medical or humanitarian trip to the U.S. can have their visa application interview expedited at the appropriate U.S. consulate or embassy. Nobody with a revoked ESTA will be authorized to board a conveyance to the U.S., whether the individual has received the email notice or not. So everyone is advised to check for continued ESTA approval before making travel reservations.
The new law exempts those performing military service in the armed forces of a country that participates in the Visa Waiver Program, or those carrying out official duties in a full-time capacity in the employment of the government of a Visa Waiver Program country. These exclusion may be waived by DHS if it would be in the interest of law enforcement or national security of the United States.
The law also excludes from the Visa Waiver Program individuals who are “nationals” of Iraq, Syria, Iran, or Sudan. Nationality is not the same as citizenship. It typically depends on the laws of the designated country. A person can be a national of a particular country, even if he or she has never resided in that country and/or does not have a passport issued by that country. Customs and Border Protection (“CBP”) has advised that ESTA-registered travelers who fall into the dual national category will receive notice via email on or about January 21, 2016 that their current ESTA is no longer valid.
The Visa Waiver Program is an excellent and efficient means of obtaining travel authorization, but every traveler should take the time to be sure they qualify for it before attempting to use it to travel to the U.S.
[i] Canadian citizens do not need a B-1, B-2 or B1/B2 visa, and are not part of the Visa Waiver Program. Canadian citizens may seek admission for business or pleasure simply by presenting themselves with appropriate documentation other than a visa at the port of entry.
Many people have heard about the lawsuit in which a consumer won a substantial verdict against McDonalds over a burn from a cup of hot coffee. Last year, General Motors faced claims due to a faulty ignition switch that shut off the engine during driving, disabled power steering and power brakes, and even prevented airbags from inflating. Toyota faced similar problems in the past with claims of sudden acceleration in certain car models. Tobacco companies like Philip Morris faced lawsuits over cigarettes and many medical device companies have faced serious claims that their products harmed the very people they had aimed to help. Products liability cases affecting consumers tend to make headlines. Defending companies often take a hit to their reputation as well as their bottom line.
Our next installment of Resource for Doing Business in the U.S. introduces products liability law concepts and explains why negligence or fault may not even matter. Moreover, it’s not just the manufacturer who is at risk; others in the distribution chain can be sued too. With judgements frequently in the millions of dollars, foreign investors in the U.S. must think ahead about ways to mitigate the substantial risks that products liability claims can present. This installment offers a few concrete steps a potentially affected company can take to protect its business and investment.
The State of Washington’s new Limited Liability Company Act became effective on January 1, 2016. The new Act significantly alters several aspects of Washington law governing LLCs. To see what you should be aware of moving forward under the new Act (including potential changes to current LLC agreements), please feel free to refer to our white paper on the subject here.
To all you aspiring billionaires:
If you are attracted by the $1.5 billion Powerball jackpot taking place this Wednesday, you are among a great number of peers – but please don’t throw away your dream by taking your winning ticket outside the United States.
According to a little known U.S. law, "all persons are prohibited from importing into the United States from any foreign country any … lottery ticket, or any printed paper that may be used as a lottery ticket, or any advertisement of any lottery." Why? According to 17 U.S. Code Section 1305, the U.S. government views lottery tickets, among other listed items, as “immoral articles,” which are therefore banned from import into the country by any means of transportation.
Although foreigners are not barred from purchasing lottery tickets and claiming any winnings while inside the country, transporting lottery tickets beyond the border means that the winner will be unable to bring his or her ticket back into the U.S. to claim the prize. U.S. Customs and Border Officers have been warning cross-border travelers (who come to the U.S. intending to buy lottery tickets) that a ticket may be seized, confiscated and destroyed according to the law if a winner attempts reentry with the winning ticket.
So, whether you are a Canadian citizen or resident (who lives just minutes across the U.S. border) or a Chinese citizen (who is trying to hit the jackpot from across the ocean) – you have been warned. Do not gamble on your chance of winning the big one by carelessly taking your potentially winning ticket outside the United States.
A good business plan involves consideration of both short-term and long-term goals. Your plans should do the same for your management and business employees; getting them into the U.S. as you start or grow your business, and keeping the organization properly staffed as it succeeds. This occasional blog provides guidance regarding some of the most common and important employment-based U.S. immigration options.
In previous blogs, we have written about transferred employees under the L status for up to seven years, and employment of Japanese citizens under the E status without the need to prove previous employment, and with the ability to maintain that status forever. Today’s blog is about options in which the government is more heavily involved, such as the wages paid and the decision-making process.
“Specialty Occupations” present a great option for U.S. employment of transferred employees or new hires. The general rule for these jobs is that the job requires a specific type of college degree or the education and/or experience equivalent of that degree, and the person has that degree or equivalent. Classically, this applies to jobs such as accountants, engineers, and computer professionals, among others. It can be difficult to obtain approval for jobs that some people (and the government) don’t normally associate with a particular degree, such as Sales Managers, Market Research Analysts, or Public Relations Specialists. But it can be worth exploring.
H-1B: Available to Citizens of All Countries
The current challenge with the H-1B classification is that only people who already have that classification can be hired; a person who has not already been approved for employment with that classification can’t get it until October 2016 unless the employer or employee has exemption from the numerical limitation. Anyone hoping to be considered for one of the H?1B’s to be allocated at that time should plan to submit the filing on April 1, 2016, the first day on which filings will be accepted. Only 78,200 new H-1B’s are available for each fiscal year, and they can all be allocated within as little as a few days or weeks.
H-1B1: Available to Citizens of Chile and Singapore
The H-1B1 status, almost identical to the H-1B referenced above, is available to citizens of Chile, who have 1,400 available each year, and Singapore, who have 5,400 available each year. To date, the government has never allocated the maximum available each year, so they are available throughout the year.
E-3: Available to Citizens of Australia
Australian citizens have a virtual equivalent to the H-1B in the form of the E-3 status, which is open for applications year-round because the 10,500 limit has never been fully approved.
All three of these classifications require multiple government filings and approvals, starting in the U.S. with the Department of Labor certifying labor conditions and wages. After that, the processes diverge. H?1B status must be approved in the U.S. by U.S. Citizenship and Immigration Services (USCIS). The H-1B1 and the E-3 statuses can be approved at U.S. consulates as a part of the visa application or, for a person already in the U.S. in some other status, by USCIS. Government-charged filing fees in the U.S. start as low as $825 for an H-1B1 or an E-3, and $1,575 for an H-1B. Visa fees are in addition to those charges. There can be a difference between the time period approved for the “status,” and the time period for the visa, which is the travel document associated with the status. Status approval of an H-1B1 is for up to one year at a time and, for an E-3, it is for up to two years at a time. Both are renewable indefinitely. An H-1B status can only be approved for as many as six years, in three year increments.
For more information, see:
The Labor, Employment & Immigration group is available to work with you as you consider employment-based immigration options for you or your employees.
Foster Garvey’s International practice group comprises a cross-disciplinary group of attorneys practicing in areas ranging from business transactions, immigration, maritime, government regulatory work, transportation and logistics and estate planning. The group members include bilingual and multicultural attorneys who are well-versed in handling these subject matters in a cross-border context. A number of attorneys have been actively practicing in the international arena since the early 1970s.