Take the 2-minute tour ×
Travel Stack Exchange is a question and answer site for road warriors and seasoned travelers. It's 100% free, no registration required.

So:

  • I am a UK citizen
  • I work for a US company
  • I currently live in the UK and have no US visa

What am I allowed to do when I enter the US on an ESTA? Am I allowed to work if I am getting paid in a UK bank account? Obviously a potentially contentious issue and I'm keen to get it right!

share|improve this question
3  
Can you confirm how long you are intending to visit the US for? The fact you're mentioning an ESTA (and thus VWP) implies that it will be no longer than 90 days - is that correct? –  Doc Aug 29 '12 at 20:56
add comment

1 Answer 1

up vote 12 down vote accepted

The Visa-Waiver Program, or VWP (which is what the ESTA relates to) allows you to enter the US for the purposes of Tourism or Business, but not for 'work'.

The distinction here is really down to where you are paid. Presuming you are already working for this company, and being paid in the UK, then your visit to their US offices is classified as a "business" trip, and is thus eligible for entry under the VWP.

Whilst you are in the US you are able to participate in 'business' for your company, but in effect this must be the same type of business that you would have been carrying out whilst you were in the UK. They can not pay you any additional wage (other than expenses/etc) over what you would normally have done in the UK, and they can not pay you locally in US dollars or in any form that would require you to have a US Social Security Number.

ie, you're good! This is one of the purposes the VWP was designed for, and I've personally done exactly what you're describing at least a dozen times (from Australia rather than the UK, but otherwise the exact same situation)

The definition of what is allowed under a B-1 visa (and thus also under the VWP) is defined in the U.S. Department of State Foreign Affairs Manual Volume 9 - Visas

The relevant section is :

9 FAM 41.31 N8 ALIENS TRAVELING TO UNITED STATES TO ENGAGE IN COMMERCIAL TRANSACTIONS, NEGOTIATIONS, CONSULTATIONS, CONFERENCES, ETC.

(CT:VISA-701; 02-15-2005)

Aliens should be classified B-1 visitors for business, if otherwise eligible, if they are traveling to the United States to:

(1) Engage in commercial transactions, which do not involve gainful employment in the United States (such as a merchant who takes orders for goods manufactured abroad);

(2) Negotiate contracts;

(3) Consult with business associates;

(4) Litigate;

(5) Participate in scientific, educational, professional, or business conventions, conferences, or seminars; or (6) Undertake independent research.

It's also worth specifically reading the section in that document regarding the "Board of Immigration Appeals in Matter of Hira", which basically holds that partaking in work actives whilst in the US, whilst not being paid locally (other than expenses) as a part of future work that will principally be performed outside of the United States, IS covered by B-1 status. You can find a copy of the Hina ruling on the Department of Justice Website.

The main confusion with B-1/VWP is the very mis-used term "work". In general in immigration law, "work" when used in most contexts actually relates to being employed and/or remunerated (other than reasonable expenses) in that country, not the act of actually working.

As an example of this, the Department of Justice/INS document "PERMISSIBLE ACTIVITIES FOR B-1 BUSINESS VISITOR" specifically states that the "B-1 classification applies when a foreign employer requires an alien employee to work temporarily in the United States (US) pursuant to the foreign employer’s international transactions." ie, it is permissible to "work" in the US whilst under B-1 status, but not to be "employed" in the US.

(Note that the "foreign employer" part of this statement will almost certainly be true, even though the person claims to work for a "US Company" on the grounds that the actual employer will be a local subsidiary of the US company - at least from a legal perspective)

share|improve this answer
1  
Just wanted to point out that "I did it many times" != "it is ok". Not being caught doesn't make you any less thief, if you can understand the analogy. Generally, what you described could be used to override the foreign workers visas - hire someone elsewhere, pay them there, and bring them to work in the US on B1. It happens, and firms do it, but it is illegal. Those who do get caught - are banned from entry to the US for 10 years at least, and their WVP privileges are revoked forever. The offender in this case is you, not the employer. So they don't care, its you who is taking the chance –  littleadv Aug 29 '12 at 21:45
4  
To be a little clearer, I've done this multiple times whilst working for companies both big and small (eg, Cisco, Sun Microsystems). Their travel/immigration people said that VWP was the correct status. I've told countless immigration officers why I was there and what I was doing when entering the US, and they confirmed VWP was the correct status. You are correct that hiring someone elsewhere and bringing them to the US to work on B1 would not be allowed, but that's very different to bringing an existing employee to the US for a short-term visit (VWP is max 90 days). –  Doc Aug 29 '12 at 22:00
    
as I said in my answer, if it is a couple of weeks visit for the benefit of the UK employer - that should be perfectly fine. But the line between "stretching the line" and outright abuse and unlawful act is very thin and rather fuzzy. –  littleadv Aug 29 '12 at 22:02
    
I see you had to edit your answer a couple of times to make it the exact opposite of what it was when I first read it. I won't remove my downvote though because you have to think twice before you answer, not after you're told that what you wrote is wrong. Because giving wrong answer is worse than not giving answer at all. –  littleadv Aug 30 '12 at 7:49
5  
littleadv - One of the joys of StackExchange is that you can view the edits on a question or an answer. If you look at the edits on my answer you'll see that I didn't change a single word in the entire answer - I edited the answer twice, on both occasions adding additional information supporting my original text. Thus there is no way that the answer could now be "the exact opposite" of what it was, given that the original answer is still there untouched. –  Doc Aug 30 '12 at 17:58
show 1 more comment

Your Answer

 
discard

By posting your answer, you agree to the privacy policy and terms of service.

Not the answer you're looking for? Browse other questions tagged or ask your own question.