When planning to come to the U.S., a foreign national will have to either register online for ESTA (Electronic System for Travel Authorization) in order to travel to the U.S. under the visa waiver program (without a visa) or apply for a visa. This article will give an overview of the necessary steps to either register for ESTA or obtain a non-immigrant work visa.
The ESTA program is available for citizens of 38 countries and is a way to prescreen business travelers or tourists. Although the approval of the online registration can be instantaneous, it is best to apply a few days before traveling to the U.S. in case of a delay or denial.
If a traveler is a citizen of a country that qualifies for ESTA but has additional nationalities that do not qualify or if the traveler has visited Iran, Iraq, Libya, Somalia, Syria or Yemen after March 1, 2011, he or she is NOT eligible for ESTA and must apply for a visa. All too often travelers think that if they traveled to a country like Iran on a second passport, nobody will know that they are not eligible for ESTA. That’s a big mistake and can have dire consequences.
It is absolutely important to be truthful and accurate when completing ESTA or any other visa application, and not to assume that nobody will ever know if information is withheld. If a traveler is caught having made incomplete or inaccurate statements on an application, the traveler could be barred from entering the U.S. under any circumstances for several years.
ESTA is required for tourists or business travelers planning to come to the U.S. for less than 90 days. Anybody who plans to stay 91 days or longer must obtain a visa.
When entering the U.S. with ESTA it is not permissible to work for a U.S. company (for example the subsidiary of a foreign employer) or to perform the actual work in the U.S. even if the work is subject to an agreement with a foreign client outside the U.S.
ESTA is suitable for business travelers who come to the U.S. to attend a conference, visit customers or potential customers to negotiate a contract, collect data and information that will be assessed and analyzed outside the U.S., participate in litigation or to attend meetings for the Board of Directors if one is a director of a U.S. company (please note that “officers” of a U.S. company such as the President or a Vice President should generally have work authorization even if they don’t reside in the U.S. as they are responsible for the day-to-day activities of the U.S. company).
Even though a traveler will generally be given 90 days when entering the U.S. under ESTA, it is advisable to bring along evidence that justifies the length of the business trip. Tourists should be prepared to show that they have an agenda or an itinerary for the trip and a return ticket.
It is generally not possible to extend a stay in the U.S. beyond the 90 days if one entered under ESTA. Even a brief trip to Canada or Mexico will not interrupt the 90 days. Anybody who stayed longer than 90 days will not be able to travel under ESTA in the future and must apply for a visa.
When ESTA is not an option, travelers must apply for a visa in order to come to the U.S.. A visa is merely a permission to come to the border of the U.S. and request entry into the U.S. in a particular status.
The permission comes in the form of a sticker that is placed in one’s passport at a U.S. Consulate outside the U.S. In order to apply for a visa one must meet the necessary requirements, complete an application, in some cases have an approved petition that was filed by a U.S. employer, and attend an interview at a U.S. Consulate.
There is a variety of different visas, each named after a letter of the alphabet, and each visa comes with very different requirements. This memo is not intended to give an overview of all the various visa categories or requirements, and it is important to carefully analyze the facts of each situation and determine the best visa strategy for each individual applicant.
Note: We’ve given a brief overview of the various visa options for entrepreneurs on our blog.
The equivalent to ESTA with regard to permissible activities in the U.S. is the B-1 (business traveler)/B-2 (tourist) visa. Nothing that is impermissible under ESTA is permissible with a B-1/B-2 visa although often people wrongly assume that as long as they have a visa in their passport, they can work in the U.S.
The B-1/B-2 visa can be applied for by the traveler himself or herself directly at a U.S. Consulate, however, for business travelers, it may be advantageous to include a letter from the foreign employer regarding the purpose and length of the business trip.
Most other non-immigrant visas require a U.S. employer to submit a petition/application to either the Department of Homeland Security in the U.S. or a U.S. Consulate outside the U.S. and obtain approval before the traveler can actually apply for a visa.
Petitions/applications filed by an employer at a U.S. Consulate can sometimes be submitted directly with a visa application of a traveler but that’s not always the case. Unlike petitions that require filing in the U.S., petitions, and applications submitted at a Consulate can sometimes be processed between 1-8 weeks depending on the Consulate and the application. Sometimes an application is also processed directly during the interview.
Unlike petitions that are filed directly at a Consulate outside the U.S., petitions that require filing in the U.S. can and often do take significantly longer. While expedited processing is available to most relevant petitions, such fast processing is also more expensive and does not mean that the application will be approved without additional questions that can delay a petition application by several months.
Such petitions must be filed by a U.S. employer (for example the U.S. subsidiary of a foreign employer) even if the traveler does not intend to relocate to the U.S. or will continue to be paid by a foreign employer. It is important to remember that if a traveler enters the U.S. with a non-immigrant work visa that required a petition by a U.S. employer, the traveler is legally considered an employee of the U.S. company (with all the requirements that follow) even if he or she may not be paid in the U.S. and continues to be insured by the foreign employer.
Over the last few years, most immigration practitioners have experienced great frustrations with certain visa petitions that are filed in the U.S. as the Department of Homeland Security seems to issue significantly more requests for additional evidence, even for applications with significant documentation, and also the number of denials is on the rise. Thus, it has become all the more important to plan several months in advance when planning on traveling to the U.S. with a visa, to carefully analyze the visa requirements, and to check if the traveler and the employer meet and are able to prove all of the requirements.
Once the application/petition is approved in the U.S., it is possible for the traveler to apply for the actual visa at a U.S. Consulate. Such application adds additional time as a short application needs to be completed online (DS-160), an appointment for an interview needs to be scheduled, and the Consulate needs time to process the visa after the interview if it is approved (usually about a week after the interview). Thus the actual visa application can take another 2-4 weeks on average.
It cannot be stressed enough that it is very important to allow for adequate time to assess the visa requirements and to apply for the appropriate visa. Especially these days, visa applications can easily take several months and travel to the U.S. while a visa application is pending, is generally not recommended unless carefully planned.
One should also keep in mind that visa matters are very fact-specific and just because a friend or relative received a visa in less than 3 weeks, does not mean the same is true for anybody else. The slightest variation can make the difference between eligibility or non-eligibility for a particular visa. Visa denials can have long-term consequences for the applicant as well as for the employer, therefore it is best to consult an experienced immigration attorney with questions about requirements and procedures for entering the U.S.
Sarah Ames is a partner at the national law firm of Quarles & Brady LLP and located in Chicago. She is a native of Heidelberg, Germany and in addition to attending law school in Hamburg, Germany graduated from the University of Alabama School of Law. For over 20 years she has advised multinational companies and individuals on employment work visas as well as family immigration matters. She is a member of the American Immigration Lawyers Association and the American Bar Association. In her spare time, she is involved with various charities, a frequent traveler to places all around the world including Antarctica and the North Pole, and a marathoner who completed 7 marathons on 7 continents in 7 days.