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Visas for Doing Business in the USA

Getting advice regarding visa requirements when you need can be priceless in avoiding a bureaucratic nightmare.  I am grateful to Janice Flynn  of US Visa Solutions for providing the following:

Avoid US Visa Pitfalls When Doing Business in the US

Most growing companies can gain a foot hold in the US to reap the rewards of getting its product or services to the US market.  There are many considerations when opening up a US office but the issue of US visas to allow key staff to work in the US is often forgotten.  Key staff must deployed to the US when you need them most but if they are not allowed into the US it can often affect your company’s bottom line.


ESTA & the Visa Waiver Program

If you have visited the United States and are British most likely you travelled to the US without a visa on the Visa Waiver Program.  Great Britain participates in the Visa Waiver Program which allows British citizens to travel to the US for less than 90 days for business trips or tourism.  Before travelling to the US a British national must first registration only via the Department of Homeland Security’s Electronic System for Travel Authorization (“ESTA”).  Many business travellers push the limits of how many times they travel to the US on the Visa Waiver Program.

When entering the US the key issue the Customs Officer wants to know is your activity in the US.  If a visitor’s activity does not match the visa category in which they are entering the US, they could be refused entry into the US.  If you need a key employee in the US the interruption of not having an employee in the US when you need them to be can be devastating to your business expansion plans.  Business travellers attempting to enter the US on the Visa Waiver Program may attend brief business meetings and conferences but may not “work” while in the US.  “Working” is defined as regular productive employment. If you have sent an employee to the US several times for long periods on the Visa Waiver Program, the more likely it will appear that the employee is “working” in the US even if they are still on the UK company’s payroll.  Unfortunately, there are no regulations that limit the amount of time a person may travel within a certain time period on the Visa Waiver Program.  Instead, it is the US Custom Officer’s discretion that will determine whether a person has abused the Visa Waiver Program.


Employment-Based Visa Options

If a person is refused entry to the US because the CBP Officer believed he or she has working in the US, the Consular Officer at the US Embassy most likely will not issue a B-1 business visitor visa to the applicant.  More likely the Consular Officer will advise that it is more appropriate for the visa applicant to apply for an employment-based visa category before re-entering the US.  The most common temporary employment-based visa categories are the L-1 Intra-Company Transferee, the E-1 Treaty Trader, E-2 Treaty Investor or the H-1B Professional Specialty Worker visas.  Each of these categories has different requirements and benefits and no one category is necessarily the best option for all companies doing business in the US.


Prior Criminal Records

Another area that can cause many problems is if a traveller to the US has prior arrests or convictions.  The most difficult cases are the high level executive who may have had a spot of trouble when they were 18 years old and worked their way to overcome that trouble.  The UK’s Rehabilitation of Offenders Act does not apply to US immigration law.  This means that any criminal convictions a person has will always be on that person’s record and must be declared when they apply for ESTA authorization and when applying for a visa at the US Embassy.  Not all offenses will make a person ineligible for a visa but getting advice on whether a prior criminal conviction will be an issue will ensure you can avoid a visa denial.

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