U.S. Entry - The Do's and Don'ts - Important Entry Rules, Regulations and Consequences for Violators
We are sending you this memo due to an apparent recent trend concerning U.S. admissions of Visa Waiver Program ("VWP") Applicants and B-1 Travelers who are relying on improper information about their eligibility for U.S. immigration benefits through various sources, including Consular Call Centers and the Internet.
We encourage all B-1 visa applicants and VWP travelers to consult with, and rely on, the information given to them by their U.S. immigration attorneys, since, typically, information on the Internet is general in nature, not keyed to the traveler's unique circumstances, often not accurate, and often not up-to-date. Additionally, other individuals providing advice concerning a traveler's eligibility for U.S. immigration benefits do not necessarily represent the traveler and, therefore, may not understand, or be aware of, all of the circumstances involved in U.S. travel, and they may not have the traveler's best interest at heart.
It is absolutely crucial that you or your company be vigilant in order to avoid violations of U.S. immigration laws by allowing "stealth" workers to masquerade as U.S. business visitors. Increasingly, the United States is tightening its laws, and is even imposing criminal sanctions and fines on companies and individuals who try to circumvent the rules requiring work permits by pretending to enter for business visits which can even lead to a lifelong ban from the United States. Extreme competitive pressures and deadlines on businesses are no excuse to violate U.S. immigration laws by abusing the U.S.'s business-visitor visa category. Wuersch & Gering's immigration team can help you and/or your company prevent, and/or spot, misuses of the U.S. business-visitor category. We can also analyze and propose possible avenues to procuring legitimate work visas and residency in the United States.
U.S. Entry Under the VWP For Business and Tourism
If a U.S. traveler is from a visa waiver program country (currently including Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, South Korea, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, The Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, Spain, Sweden, Switzerland, Taiwan, and the United Kingdom), and is coming for tourism or business (but not for employment or as a working member of the media), he/she may enter into the U.S. (including Hawaii, Alaska, Puerto Rico and the U.S. Virgin Islands) for up to 90 days. If the traveler wishes to visit the U.S. for a longer period of time, he/she will need to obtain a B-1 visa. If visiting the U.S. under the visa waiver program, the traveler cannot apply for an extension of stay and must leave the U.S. on or before the date set forth on the U.S. visa stamp entry document.
It should further be noted that a Visa Waiver Traveler does not have the right to a hearing pertaining to a denial of admission, and, in that case, should adamantly request a voluntary withdrawal of his/her U.S. entry application, if the entry officer so permits. We also recommend that the Visa Waiver Traveler who is being denied entry into the United States should request to be seen by a CBP supervisor. In the case of entry refusal, the officer will prepare a report which should be carefully reviewed by the entry applicant, errors should be corrected or if the entry officer declines requested correction(s), the traveler should not sign the report inasmuch as the report can be used by either party in future proceedings.
While in the U.S., the traveler may go to Canada, Mexico or the Caribbean and adjacent islands and re-enter the U.S. using the visa stamp or I-94 entry admission notation he/she was issued on the VWP passport when he/she first arrived in the U.S., although the time spent there is included in the overall 90 days allotted for the visit. Consequently, it is important to note that short visits to Canada or Mexico will not result in the issuance of a new U.S. entry document providing a "fresh" stay of 90 days.
The terms of the VWP are very clear - it is only to be used for occasional, short visits to the United States. If a U.S Customs and Border Protection ("CBP") officer believes that a traveler is trying to "reset" the clock by making a short trip out of the U.S. and then re-enter for another 90-day period, he/she can be denied entry. In this case, the traveler will have to obtain a visa for any future travel to the U.S. in order to be re-admitted to the U.S. To re-enter the U.S. shortly after a previous admission expired, the traveler will have to convince the CBP officer that he/she has a bona fide purpose for the new entry, and should be documented accordingly.
Travelers seeking to enter the U.S. under the VWP must first apply for an Electronic System Travel Authorization ("ESTA") (see: https://esta.cbp.dhs.gov/esta/). ESTA is an automated system that determines the eligibility of visitors to travel to the U.S. under the VWP. Authorization via ESTA does not determine whether a traveler is admissible to the United States. CBP officers determine admissibility upon the traveler's arrival. The ESTA application collects biographic information and answers VWP eligibility questions. ESTA applications may be submitted at any time prior to travel, though it is recommended that travelers apply as soon as they begin preparing travel plans or prior to purchasing airline tickets, but at least 72 hours in advance of the intended travel.
For Canadian citizens, the length of stay for tourists is up to 6 months. Canadians may file for an extension of stay with the U.S. Citizenship and Immigration Services.
While a VWP traveler can enter the United States for short bona fide business purposes, he/she is not permitted to engage in any gainful employment or productive work, and must: maintain nonimmigrant intent; return to his/her home country after the completion of travel; maintain a foreign residence; and travel with a valid roundtrip ticket within the permissible period of time for VWP travel. The VWP business traveler's permissible business activities are similar to the below-described activities defined by the Department of State for a B-1 business traveler.
U.S. Entry Under B-1/B-2 Visas as a Bona Fide Business Traveler or Tourist
Generally, a citizen of a foreign country (that is not part of the VWP) who wishes to enter the United States must first obtain a visa. Visitor visas are nonimmigrant visas for persons who want to enter the United States temporarily for business (visa category B-1), tourism, pleasure or visiting (visa category B-2), or a combination of both purposes (B-1/B-2). Generally, stays in the United States in this category are brief, and involve such activities as touring, visiting family members, obtaining health care, or conducting business on behalf of an overseas employer, and the traveler intends to depart the U.S. after the expiration of his/her stay and maintains a foreign residence. The trips are temporary and cannot involve employment in the United States, which is a key condition of the B visa category. That said, the alien cannot engage in productive work or gainful salaried employment. In fact, the Department of State has listed the acceptable B-1 activities as "engaging in commercial transactions not involving gainful employment or productive work". Permissible activities under B-1 include merchants taking orders for goods manufactured abroad, negotiating contracts, consulting with clients or business associates, litigating claims, and/or undertaking independent research.
We have become aware of a recent trend concerning the U.S. business entry of managers and executives in VW or B-1 status. Immigration officers have been asking whether such individuals have "direct reports" (i.e. U.S. personnel directly reporting to them) in the United States, and if so, have been requested to obtain a work visa. Our belief is that the officer is concerned that the business traveler will be engaging in gainful employment which is contrary to the purpose of the VW and/or B-1 visa. For those who may be concerned that they may encounter such questions, and maybe denied entry into the U.S., we recommend seeking legal advice well in advance of any intended U.S. business travel.
Individuals that apply for a B-2 visa are permitted to enter the U.S. for 90 days for the following purposes: tourism, vacation (holiday), visiting friends or relatives, medical treatment, participation in social events hosted by fraternal, social, or service organizations, participation by amateurs in musical, sports, or similar events or contests, if not being paid for participating, and enrollment in a short recreational course of study, not for credit toward a degree (for example, a two-day cooking class while on vacation).
It is imperative that the traveler provides honest information at the time of entry, and indicates the truthful purposes of his/her visit. B-1 business travelers should ideally be carrying a letter from the foreign employer, explaining the need for the business travel, confirming the U.S. traveler's employment abroad, stating that the traveler will not be engaging in productive work, will remain on a foreign payroll and will not derive any kind of remuneration subject to his/her U.S. visit. If the B-1/B-2 traveler intends to stay longer than 90 days, documentary evidence for his/her continued "nonimmigrant intent" and financial security should be presented, such as employment agreements, proof of continued foreign residency (lease/deed), and proof of sufficient funding for the extended trip (i.e. bank statement, credit card info).
B1-B-2 travelers can also extend their U.S. stay while they are in the United States through the filing of an I-539 Petition with USCIS, providing convincing documentation in demonstration of the need for a stay extension. Also, B-1/B-2 visa holder have a right to request a hearing before an Immigration Judge in the United States pertaining to a denial of admission. It is also prudent to ask to speak to a CBP supervisor should the entry officer be inclined to refuse B-1/B-2 entry. As with VW travelers, in the event of a denial of admission, the officer will issue a report which should be thoroughly reviewed, revised, if necessary, and only be signed if the report appears to be correct.
Naturally, our team of experts stands ready to assist you or your company with any questions you may have regarding lawful U.S. entry for business or pleasure.
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This summary is intended to provide general information only on the matters presented. It is not a comprehensive analysis of these matters and should not be relied upon as legal advice. If you have any questions about the matters covered in this publication, please contact:
Hilde Holland: hilde.holland@wg-law.com | (212) 509 4715