Visiting US company headquarter on visa waiver program (ESTA) or B-1

Question

I am having trouble finding out which visa I need for visiting the US headquarter of my new company.

Background: I'm starting as a software engineer in my European company. The employment is through a local PEO since the US company has no presence there yet. To get acquainted with the business, it'd make sense to go to the US and talk to the new colleagues as early as possible. On the other hand, I also don't want to be denied entry for obvious reasons.

UK citizen, US company, living in UK: Can I use an ESTA? is the best discussion of this topic that I could find so far. However, it is from 2012 and @Doc was working for the local subsidiaries of much larger organizations. Would this still apply to my situation (PEO not subsidiary, new at the company, 2017)?

The documents I could find mostly mention that business meetings fall under the scope of ESTA. Training is also mentioned in many places but it is never clear what is allowed and what is not. Employer information bulletion 99-03 (unfortunately without date and official download) mentions that "Alien trainees who seek merely to observe the conduct of business or other professional or vocational activity may qualify for B-1 or B-2 classification if the US business does not pay or reimburse expenses. The foreign employer must continue to be the principal employer and pay wages, salary, and/or other compensation from a source abroad." The document goes on to say "Hands-on training, deigned to provide on-the-job experience, is not deemed to fall within the B-1 (or B-2) classification. Even if the foreign employers pays salary and expenses, B-1 classification is inappropriate if the hands-on services performed by the trainee will benefit the US-based company and/or the US-based company would have had to hire an employee but for the services of the alien 'trainee.'" (emphasis mine)

The official flyer from 2015 does not mention training and mainly refers to the business visa center While I cannot find details at the BVC website either, this looks like the best authority to ask for clarification.

The official VWP page says that I may "attend short-term training (you may not be paid by any source in the United States with the exception of expenses incidental to your stay)" and "consult with business associates".

Questions:

• VWP is essentially the B1/B2 program for people from pre-approved countries, right? That means that there is no use in applying for B1 because I wouldn't be allowed to do more than on ESTA either, correct?
• Does it make a substantial difference whether I come for 2 or 6 weeks? I'd argue that a shorter period may look more like discussions and meetings while a longer period would look more like employment.
• Where does a PEO come in with regards to "not being paid by any source in the United States"? I feel like I could argue either way.
• Is there any way to get our plans pre-approved without a denial being treated as a "visa rejection" or even a "refusal to enter"?

Thank you for your help.

Answer 1

Let's take your questions one by one.

• Yes, the VWP essentially allows you to do all the things you would be allowed to do with a B1/B2 without a visa. If you are a national of a VWP country there is no point in applying for a B1/B2. Exceptions would be if you were ineligible for VWP for some reason (like having visited one of the disqualifying countries, or having been previously refused entry to the US), or if you think you might be refused for some other reason and want to find out before you travel.
• Six weeks is not an unusual time to be visiting a parent company for meetings, training etc. You will get a tiny bit more scrutiny than someone visiting for two weeks. It would be wise to be able to explain what you are doing for those six weeks, while making it clear that you are not doing any actual work while there, but only training, meetings, discussion etc.
• Assuming that your (European) PEO is your actual employer of record, you are not receiving any funds from US sources. It is not important that your employer is receiving such funds.
• The only way to get approval in advance is to apply for a B1/B2 visa, but that will be treated as a visa rejection if not approved. Your best bet is to make sure you have supporting documentation and just show up at the border.

I would suggest contacting the US company for advice on how to do this. A company of any size will have done it many times before. You will very likely get through with minimal questioning, but the following documents might be useful and are worth having:

• A letter from your PEO saying that you work for them. Possibly supporting docs like a payslip.
• A letter from the US company saying what you are there for, making sure that it doesn't imply that you will be doing actual work while there (training, discussions, meetings, etc are all OK)
• Make sure you yourself never imply to the border officer that you will be doing work there. You are there to have meetings, discussions and training.