Visa Waiver Program – Your First Steps
There is no denying that the U.S. immigration system can feel like an intimidatingly dense and thoroughly confusing field to navigate when considering traveling to the United States. Some of the common questions that tech entrepreneurs and employees face: Am I allowed to own a company in the US? Do I need a visa to hire and train US workers? I need to be in the US for fundraising – do I need a work visa?
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.
Understanding the limitations of VWP travel is an important part of any company’s or employee’s overall U.S. immigration strategy.
