Visa Waiver Program (ESTA) – Your First Steps



In this day and age when many people can work from anywhere in the world with just a laptop and WIFI connection, understanding which work-related activities are allowed when one is in the U.S. as a visitor under the Visa Waiver Program (VWP aka ESTA) is important and can be very tricky.

Often, founders and essential employees of startups and scale-ups will travel to the U.S. on the Visa Waiver Program prior to officially starting work in the U.S. in order to conduct research and “get the lay of the land.” Understanding where the line between laying the groundwork ends and employment begins is important and often difficult. Engaging in employment without the proper authorization can have detrimental and long-lasting consequences for future U.S. travel and employment.

The Visa Waiver Program (VWP) is a program of the United States Government which allows citizens of 38 countries, all deemed to have high-income economies and engage in a high level of screening for criminal and terrorist activity, to travel to the United States (including Puerto Rico and the US Virgin Islands) for tourism, and to engage in certain business activities for up to 90 days without having to attend a U.S. consular interview to obtain a visa. In exchange, those who travel to the U.S. on the Visa Waiver Program waive their right to extend their visit in the U.S., change to another visa status within the U.S., or contest removal from the U.S. in court.

When trying to determine whether your business activities in the U.S. are authorized under VWP, the rule of thumb is that “the performance of skilled or unskilled labor” is prohibited. Thus, VWP is not intended for the purpose of obtaining or engaging in employment while in the United States. However, certain business-related activities are authorized. It can be difficult to distinguish between appropriate business activities and activities that constitute skilled or unskilled labor that is not appropriate on VWP.

The clearest legal definition comes from the decision of the Board of Immigration Appeals in Matter of Hira. 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 business visitor activity, because the principal place of business and the actual place of accrual of profits, if any, were in the foreign country.  Following this logic, there are several activities that are authorized on VWP that are “incidental to work that will principally be performed outside of the United States.”

Though we cannot discuss all of the VWP authorized activities here (as there are many), it is important for entrepreneurs and employees to know that the following activities are expressly authorized:

  • Engaging in commercial transactions, which do not involve gainful employment in the United States (such as a merchant who takes orders for goods manufactured abroad);
  • Negotiating contracts;
  • Consulting with business associates;
  • Participating in litigation;
  • Participating in scientific, educational, professional, or business conventions, conferences, or seminars;
  • Undertaking independent research;
  • Serving on a board of directors (attending a meeting of the board or performing other functions resulting from membership on the board);
  • Seeking investment in the United States (though investors are precluded from performing productive labor or from actively participating in the management of the business while in the United States as a visitor);
  • Installing, servicing, or repairing commercial or industrial equipment or machinery purchased from a company outside the United States or training U.S. workers to perform such services (but only under specific circumstances).
If your activities in the US extend beyond these listed functions – expanding or developing a company in the U.S., for example – then you will need to speak to an experienced U.S. immigration attorney to find an appropriate employment visa.  For founders, developers and other VWP entrepreneurs, these are most commonly the E-2, O-1, and H-1B visas (though there are many more possibilities).

When doing business in the U.S. it is always wise to err on the side of caution.  If you are not certain whether your activities constitute “employment”, (then they probably do, and) it is always safest to obtain the appropriate employment visa.  VWP is great for first steps, researching and planning, but once you’re operating a business in the U.S., which will make you more attractive to U.S. VC’s and investors, then VWP will be of limited use.

One crucial aspect of the VWP is that those enrolled in the program should allow for a reasonable amount of time in between visits to the United States to ensure that the CBP officer does not believe that you are living in the U.S. or engaging in activities not allowed through the VWP. It is not uncommon for those repeatedly entering the U.S.  to be flagged for secondary questioning. The more times you come to the country, the more likely it is that you will be sent to secondary questioning upon landing. If you are noticing an uptick in these instances or want to avoid the possibility of adding three hours of secondary questioning to your travel plans, another visa option might be your best bet. 

The 90-day period additionally covers any time you may spend in Canada, Mexico, or other adjacent North American countries, so if you were to go across the border while holding ESTA, your duration of stay continues even if you are not technically in the United States. 

Another option for visiting the US for business, tourism, pleasure of visiting or a combination of both is the B-1 visa. Commonly known as the Visitor Visa, the visa allows for visitors to stay for a maximum duration of 6 months (as determined by your Immigration Officer upon arrival), and while you cannot use the visa to pursue or obtain employment in the US throughout this time, you are allowed to engage in certain business transactions, attend business conferences, or visit for pleasure as well. While the B-1 visa requires you to be vetted through a consulate interview, it allows more freedom in your activities and flexibility in the amount of times you can come to the country.

Understanding the limitations of VWP travel is an important part of any company’s or employee’s overall U.S. immigration strategy.

Kelly Decsy, Senior Associate Attorney, D’Alessio Law Group, Los Angeles


As the daughter of refugees who immigrated to the U.S. from Cold War Hungary, Kelly Decsy has a personal passion for helping others achieve their immigration dreams. Kelly represents clients on a full range of immigration matters, with a particular focus on employment-based visas for technology and entertainment professionals. Her practice emphasizes a personalized approach, using case strategies tailored to each client’s unique individual needs.

Kelly is proud to help foreign talent and their employers navigate the complexities of U.S. immigration, and enjoys working in a field where her professional duties can align closely with her personal background. Before joining DLG, Kelly worked as a senior trial lawyer at a fast-paced Los Angeles law firm. She received her BA from the University of California at Riverside, before earning her Juris Doctorate from Southwestern Law School. As part of her law training, Kelly studied in the United Kingdom through the University of London’s International Entertainment Law Program. She has received numerous accolades, including both the prestigious CALI Award and Southwestern Law School’s Witkin Award for Academic Excellence.

 

Kelly Decsy, Esq.

D'Alessio Law Group

Senior Associate Attorney

Kelly@dlgimmigration.com

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