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B Visa and Visa Waiver (ESTA) – Can You Work While in the U.S.? Yes, No, Maybe, Kind-of…

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Imagine the scenario. You are an international executive helping to grow a new branch of your business in the United States. Instead of contacting an immigration attorney you feel that you can come to the U.S. and complete your duties (which are limited) while on a B visa or visa waiver (ESTA). You spend two months in the U.S., and then go back to your country for a week. Then you spend two more months in the U.S., and then go back for a week. Now you try to come back to the U.S., let’s say, for a week to ensure that your new U.S. manager has the business under control. But this time when you go through U.S. customs the border agent tells you that you have been abusing your B visa or visa waiver, and they want to question you about your activities… so you spend hours in the airport to learn that you cannot come back to the U.S. unless you obtain another visa (like an L or E visa). This could have been avoided.

Before the discussion, let’s explain some terminology. A B visa is a visitor’s visa that can be used for business (B-1) or vacationing (B-2) in the United States. Most B visa holders are approved for both B-1 and B-2 activities (B-1/2). Visa waiver, or ESTA, is available for certain countries that the U.S. does not require to have a B visa. Essentially, people from these countries enter into the U.S. without a visa and can come for business or travel. So the B visa and visa waiver are pretty much the same. Now let’s go through some points to consider:

What types of business activities can you complete in the U.S. while on a B visa or visa waiver?

While in the U.S. on the B visa or visa waiver, you can go to business meetings, attend training seminars, participate in a conference, negotiate contracts, and other activities that are not considered to be “work”. You cannot “work” while in the U.S. on a B visa or visa waiver. “Work” is a dirty word if you are here on a B visa or visa waiver.

So in my example above, the executive probably was not “working”. The executive negotiated a lease for the new U.S. company, hired a U.S. manager to start purchasing furniture and supplies for the new office. Maybe the executive was training the new manager on the company’s processes. But when the executive crosses over to selecting the operational staff, training the operational staff, managing the work of the staff, the executive has probably crossed over to the dirty world of “work”. You cannot do this unless you are on another visa, such as an L-1A visa or E visa.

It is important that the executive speak with an immigration attorney before coming to the U.S. in this scenario. I understand… the executive does not want to pay thousands of dollars to petition for a work or investor visa since the plan is to only spend 4 months in the U.S. at the start. But the issue is if the U.S. government decides that the executive has been completing “work” in the U.S., the executive will either be told that he or she cannot come back to the U.S. without a proper work visa, or the executive can even be barred from the U.S. in the most extreme case.

How long can I stay in the U.S. on a B visa or visa waiver?

The visa waiver allows the visitor to stay in the U.S. up to 90 days, and the B visa allows the visitor to stay up to 6 months. Don’t get this confused. This does not mean that you can stay for six months, leave to the Bahamas for a weekend, and then come back to the U.S. for another 6 months. When visitors try to use their B visa or visa waiver in this way U.S. customs will tell you that you are using your visitor status to attempt to gain U.S. residency.

So what are the rules? How much time should you spend in the U.S. as a visitor? It depends. My general rule of thumb is spend as much time outside of the U.S. as you are spending in the U.S. as a visitor. For example, if you come for business meetings for two weeks, leave for two weeks.

But I am an attorney, and overly cautious. Most executive visitors will try to walk the line more closely, and make excuses why they should be able to stay more time in the United States as a visitor. Do what makes sense to you, but I would caution that instead of worrying so much about saving a few thousand dollars in attorney’s fees, and a few thousand dollars in extra travel costs, the executive visitor should be worried about being able to come to the U.S. whenever it is necessary for the business. This means that you don’t want to abuse your visitor status and be told by U.S. customs that you cannot come back unless you get an L or E visa, because you will need to wait 2-3 months from that date because this is the normal processing time for an L or E visa.

So plan ahead, and don’t play around with your ability to come to the United States. If you don’t plan, and you abuse your visitor status, it could come back to haunt you at the worst time, when your U.S. branch office needs your support.

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