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I am employed by a UK company as an IT consultant and my company has a contract with a Danish company with offices in the USA. I have been asked to travel to the USA for 1 week to help the USA members of our project through a phase of testing. My company will charge the Danish company for my time in the USA and neither my employer or I will not receive any payment from the US directly.

Can I perform this work with an ESTA or will I need a B-1?

Minty

  • In my opinion, YES. BUSINESS TRAVEL TO THE UNITED STATES Service engineer (Commercial, Industrial) Engineer(s) install, service or repair commercial or industrial equipment or machinery sold by a non-U.S. company to a U.S. buyer, when specifically required by the purchase contract. Installation cannot include construction work, except for supervision or training of U.S. workers to perform construction. – user 56513 Mar 29 '18 at 12:58
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    Hi, just to be clear, in your opinion are you saying YES I would need a B-1 or an ESTA? – Minty Mar 29 '18 at 15:55
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    A B-1 visa allows you to perform the tasks mentioned. And an ESTA essentially allows one to do what B1/B2 visitor visas permit, so in my opinion and from my interpretation you do not need a visa. I believe I've seen similar questions here just too busy to search for the link – user 56513 Mar 29 '18 at 16:39
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Can I perform this work with an ESTA or will I need a B-1?

There's no need to get a B-1.

First, the obligatory terminology note: ESTA is a system that authorizes visa waiver program (VWP) travelers to board. The terms of admission to the US are governed by the VWP itself, which predated ESTA by a couple of decades.

Second, for a business visitor, there's no difference in the kinds of activities allowed by the visa waiver program and by a B-1 visa. The relevant part of the statute, 8 USC 1187, Visa waiver program for certain visitors is paragraph (a)(1):

(a) ...
(1) Seeking entry as tourist for 90 days or less
The alien is applying for admission during the program as a nonimmigrant visitor (described in section 1101(a)(15)(B) of this title) for a period not exceeding 90 days.

Do not let the word "tourist" alarm you; section 1101(a)(15)(B) defines visitors who come to the US "temporarily for business or temporarily for pleasure." The letter B that designates this paragraph is the source of the B in the B-1 and B-2 visa designations:

(B) an alien (other than one coming for the purpose of study or of performing skilled or unskilled labor or as a representative of foreign press, radio, film, or other foreign information media coming to engage in such vocation) having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure;

The converse of this is that if you are not allowed to do what you propose with the VWP, you're also not allowed to do it with a B-1 visa. You would need some other sort of visa. In this case, however, it seems likely that your proposed trip would be allowed under the requirements for business visitors.

With the information you've given in the question, however, it's hard to tell for sure. You (or rather your company) may want to ask a lawyer with experience in US immigration law as it pertains to business visitors.

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    Good answer, though I wouldn't be quite as swift in declaring the OP's task is allowed for a business visitor. To "help the USA members of our project through a phase of testing" could well describe something that's not allowed, if the USA team's problem is not lack of the OP's specific expertise but just lack of manpower to carry out the tests in general. – Henning Makholm Mar 29 '18 at 22:13
  • @Henning Makholm indeed. I was working on something else at the time and forgot to add the closing I had intended. – phoog Mar 30 '18 at 2:06

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