Visa Waiver Program

The Visa Waiver Program (“VWP”) allows citizens of 39 countries to enter the U.S. for business or tourism without a visa.

Basic Requirements:

• The person intending to travel under the VWP must be a citizen or national of the VWP designated country, see the list of eligible countries here.
• A VWP traveler must have valid authorization to travel issued by the Electronic System for Travel Authorization (“ESTA”).
  • A travel authorization issued by ESTA is generally valid for two (2) years. If the passport of the authorized traveler will expire in less than two (2) years, then the authorization is valid until the date of the passport’s expiration.
• The person intending to travel under VWP must have the correct type of passport.
  • A VWP traveler’s passport must be an electronic passport with a digital chip containing biometric information about the VWP traveler, and it must have a machine-readable zone on the biographic page.
  • All travelers must have an e-passport to use the VWP.
  • The passport must contain a digital photograph printed on the data page; otherwise, a visa will be required.
  • The intended purpose of travel must be otherwise permitted on a visitor (B) visa.
• Nationals of VWP countries are ineligible if:
  • They have traveled to or been present in Iran, Iraq, North Korea, Sudan, Syria, Libya, Somalia, and Yemen on or after March 1, 2011.
    • Exceptions apply for nationals who travel to the countries listed previously for diplomatic or military purposes in the service of a VWP country.
  • They are also nationals of Iran, Iraq, North Korea, Sudan, or Syria.

Restrictions:

• A person under the VWP is not permitted to:
  • change status in the U.S.
  • work.
  • study for credit.

Period of Stay:

• The period of stay is up to 90 days.
• Extensions of stay are not permitted.

B-1 in lieu of H-1B

The B-1 in lieu of H-1B Visa category is a sub-category of the B-1 Business Visitor Visa. The B-1 business visitor’s intended duration of stay in the United States is brief, and involves such activities as attending meetings or seminars or conducting business on behalf of an overseas employer.

B-1 business visitors may be admitted for the period needed to transact their business, not to exceed one year (if for business). However, it is rare for a business visitor to be admitted for more than six months. Once in the U.S., the B-1 business visitor may apply for an extension of stay, which, generally, will be granted upon a showing of necessity and non-violation of the conditions of the visa. Visitor visas typically are issued for multiple entries, meaning a visitor may apply for admission as many times as s/he would like during the validity of the visa.

The five (5) fundamental requirements for classification in the B-1 category are as follows:

1. The foreign national is entering the U.S. for a stay of limited duration;
2. The foreign national intends to depart the U.S. at the end of his/her stay;
3. The foreign national must continue to maintain a foreign residence of which s/he has no intention of abandoning;
4. The foreign national has made adequate financial arrangements to travel to, in, and from the U.S.; and
5. The foreign national will engage solely in authorized business activities while in the U.S.

There are frequent misunderstandings about the nature of authorized business activities for the business visitor. The business visitor must carefully observe the important but elusive distinction between employment, which is not allowed, and doing business on behalf of a foreign employer, which is allowed. The distinction begins but does not end with the requirement that the foreign national’s salary must be paid by a foreign employer (unless the foreign national is self-employed, in which case s/he may not perform the activities of his/her trade or profession while in the U.S.). Although a U.S. company may pay his/her living and travel expenses while in the U.S., the foreign national’s wages must be paid by a foreign employer. Moreover, the foreign national’s activities must be primarily for the benefit of the foreign employer. The attributes of an employer-employee relationship must be found to exist between the foreign national and the foreign entity and not between the foreign national and a U.S. entity. Thus, it is not sufficient to disguise actual employment by or for the benefit of a U.S. employer merely by remaining on a foreign company’s payroll.

The U.S. Citizenship & Immigration Services (USCIS) and the U.S. Department of State (DOS) have each compiled lists and guidelines of acceptable B-1 activities. Neither list is exhaustive. They demonstrate that B-1 visitors may attend conferences and seminars, may negotiate contracts and disputes, and may observe activities at a related company. Skilled technicians may enter the U.S. for the purpose of installing or repairing machinery sold by their employer within the past year, where the contract of sale requires such service. Skilled workers may also use the B-1 to enter the U.S. to teach U.S. workers or to demonstrate a skill or technique, so long as they are not productively employed.

The B-1 in lieu of H-1B visa is a short term option for individuals who will be posted in the U.S. in a professional level position and who hold the equivalent of a U.S. bachelor’s degree. The visitor must be customarily employed abroad and receive his/her salary only from his/her foreign employer (except reimbursement of incidental travel costs such as housing or per diem). This visa is not intended for long term placement and should be used for activity in the U.S. that is less than six months in duration.

Business visitors often find it useful to obtain a letter from their foreign employer or U.S. host explaining the purpose of their trip, their itinerary and their financial arrangements. This letter can be used to support both the application for the visa and the application for entry once the visa has been issued.

In order to receive a B-1 Business Visitor visa, a foreign national must apply directly to a U.S. Consulate or Embassy. There is no provision for a petition to be first filed with and approved by USCIS.

B-1 Visitor

General Inspections and Admission Recommendations

Immigration inspectors are required to question all arriving persons to determine whether they are admissible to that country. Inspection procedures can be lengthy and frustrating but are unavoidable and the following tips may prove helpful:

• You must be in possession of required documents (discussed below) and must be able to articulate the purpose of your trip. When questioned, you should provide detailed, concise information and should limit your answer to the question posed and not volunteer additional information. You should never attempt to answer a question you do not understand, but instead ask the immigration officer to repeat or rephrase the question. If questioned about the length of intended stay, you should provide the exact amount of time that you anticipate you will need to remain in the country during the current trip.
• If you are temporarily assigned to work in a foreign country, you must present a valid passport and will likely need a valid, unexpired employment-based non-immigrant visa obtained at that country’s consulate in your home country. Certain family members and cohabiting partners may be eligible for certain dependent visas that will allow them to accompany the principal family member.
• Temporary employment-based visas can, in many instances, be secured in a matter of weeks. If you are traveling to a foreign country to perform services which could be considered ‘local employment”, please contact Womble Bond Dickinson well in advance for assistance in obtaining the required documentation needed for entry/admission.
• Although visitor visa entries are sometimes viewed as essential while a work visa application is in process, such entries have proven problematic, and some individuals have been intensely questioned and significantly delayed, while others have been refused admission when trying to enter during this time. If a business trip is truly unavoidable during this time, you must be prepared, if asked, to explain why you are entering as a visitor while the petition/application is pending and must be able to prove that the activities to be conducted are legitimate visitor activities. If the Officer is of the opinion that you will be working prior to receiving the work visa, you may be refused admission and could be barred from returning to that country for a significant period of time.
• The use of cell phones is typically restricted at ports-of-entry, and a legal right may not exist for someone applying for admission to make any phone call. If a problem arises, do not expect to be permitted to make a call from the inspections area. If you are entering for meetings or house hunting prior to relocating on a temporary work assignment, you must plan to leave the country following the brief trip and apply for the work visa abroad.
• Each time you apply for and are granted admission, you should check your documentation to ensure that the visa classification and admission dates are correct. You should make every effort to have an error corrected at the time of admission. If you are unable to have it corrected at time of entry, please contact Womble Bond Dickinson Business Immigration Solutions as soon as possible thereafter.
• Many immigration officers are ports-of-entry may not have received extensive training and may be unfamiliar with the terms of your particular visa. If you encounter an issue or problem, you should attempt to speak with the supervisor on duty. If the issue or problem is not resolved at the supervisory level, you should contact Womble Bond Dickinson as soon as possible thereafter and provide as much information as possible about the situation (the location of the incident, the name or badge number of the Officer, the specific issue raised, etc.). Note that the use of cell phones is typically restricted, so you may be unable to call from the inspections area.

Business Visits to the US

The vast majority of foreign nationals who enter the US each year do so as non-immigrant visitors in the B visa category. Although some visitors qualify for ‘visa waiver’, all visitors who do not receive one of the more specialized non immigrant visas must qualify under the requirements of this category. Because the category is not simply a catch-all for those not covered elsewhere, its particular requirements must be followed. it should be noted that the B visa or Visa Waiver program is appropriate for visitors only. If you are entering the US to work and engage in productive employment, you should not attempt to enter the US as a visitor, Instead, you should obtain an appropriate employment-based visa first. Generally, a business visitor’s intended duration of stay in the US must be brief, and involve such activities as attending meetings or seminars or conducting business on behalf of an overseas employer. The B-1 visa category is reserved for visitors entering on business.

If you are a business visitor from one of the following countries, you may qualify under the Visa Waiver Program: Andorra; Australia; Austria; Belgium; Brunei; Chile; Czech Republic; Denmark; Estonia; Finland; France; Germany; Greece; Hungary; Iceland; Ireland; Italy; Japan; Latvia; Liechtenstein; Lithu­ania; Luxembourg; Malta; Monaco; the Netherlands; New Zealand; Norway; Portugal; Republic of Korea; San Marino; Singapore; Slovak Republic; Slovenia; Spain; Sweden; Switzerland; Taiwan; and the United Kingdom. Although you are subject to all restrictions on your activities in the US as an individual admitted under a B visa, you do not actually have to apply for or receive a visa prior to coming to the US As a Visa Waiver visitor, you must hold a machine-readable passport, must possess a round-trip ticket prior to boarding issues by a carrier with which the US has a special agreement, must be of qualifying nationality, and may not be admitted to or stay in the US for longer than ninety days.

As a business visitor with a B visa, you may be admitted for the period needed to transact your business, not to exceed one year. It is rare for a business visitor to be admitted for more than six months, however, to be granted entry as a business visitor, you should be prepared to present documentation addressing the following:

1. You are entering the US for a stay of limited duration;
2. You intend to depart the US at the end of your stay;
3. You continue to maintain a foreign residence of which you have no intention of abandoning;
4. You have made adequate financial arrangements to travel to, in and from the US; and
5. You will engage solely in authorized business activities while in the US.

If questioned at entry as a business visitor, you should never state intent to work in the US. As a business visitor, you should also avoid having any items in your possession that could lead an immigration officer to conclude that you are coming to work in the US. It may be useful to obtain a letter from your foreign employer or US host describing the purpose of the trip, the itinerary and the financial arrangements. If questioned, you should explain that you remain an employee of your foreign employer and that the foreign employer continues to pay your salary.

Should you have any questions about foreign travel, please contact Womble Bond Dickinson.

B-2 Visitor

The B-2 visitor visa is a nonimmigrant visa intended for foreign nationals (FNs) that are seeking to enter the U.S. for pleasure, tourism, or medical treatment.

Basic Requirements:

• To obtain a B-2 visitor visa, the FN needs to demonstrate that s/he:
  • is coming to the U.S. temporarily and for pleasure, tourism, or medical treatment;
  • plans to stay for a limited period of time;
  • has funds to cover his/her expenses in the U.S.; and
    • If the FN cannot cover all the costs of his/her trip, the FN may show evidence that another person will help to cover some or all the FN’s costs.
  • has a residence outside the U.S. and “binding ties” that will ensure that the FN will depart from the U.S. when the visit ends.

• Generally, evidence of the FN’s employment and family ties is sufficient to show the purposes of traveling to the U.S. and intent to return to the home country.

• The FN must qualify based on his/her residency and ties abroad, rather than assurances from U.S. family and friends.

Restrictions:

• With limited exception, the FN on a B-2 visa is not allowed to:
  • Study
  • Obtain employment while in the U.S.
  • Received payment for performances, or professionally perform before a paying audience
  • Arrive as a crew member on a ship or aircraft
  • Work as foreign press, in radio, film, print journalism, or other information media
  • Apply for permanent residency in the U.S.

Period of Stay:

• The initial period of stay can be for six months.
• The FN may extend the period of stay beyond the date indicated in the FN’s admission stamp or Form I-94.

Dependent Family Members:

• The FN’s spouse and children must each apply for and obtain a B-2 visitor visa to accompany the FN.

Procedure:

• The FN must complete Form DS-160, Nonimmigrant Visa application.
• The FN must pay the visa application fee.
• The FN schedules an appointment for a visa interview at the U.S. embassy or consulate with jurisdiction over his/her residence.
• At the interview, the consular officer determines if the visa is granted or not, or if further administrative processing is required.
• Assuming the visa is issued, the FN must pay a rceiprocity fee, if applicable.
• The B-2 visa allows the FN to travel to the U.S., but it does not guarantee admission. At the port of entry, the Customs and Border Protection (CBP) agent decides whether to grant admission to the FN or not.
• When the FN is admitted, the CBP agent provides an admission stamp and/or a Form I-94 Arrival/Departure Record.

Maintaining B-2 Visa Status:

• The FN is prohibited from engaging in the activities listed above; engagement in any of these results in a status violation and possible removal from the U.S.
• The FN, who does not depart the U.S. timely, begins to accrue unlawful presence which can result in removal from the U.S. and lengthy bars to returning.