The Trouble with ESTA By Michael Dominguez

by News Editor
in Blog
on 10 July 2016
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Traveling to the United States under Visa Waiver may seem like an easy way to start a business or work in the United States. However, many people who travel to the United States may engage in activities that violate their status and will endanger their ability to travel back to the United States in the future. 

There are currently thirty-eight (38) visa waiver countries whose citizens are allowed to visit the United States without applying for a tourist visa in their passport. Travelers not entering by land from Canada or Mexico are required to establish eligibility for travel the United States by filling out the Electronic System for Travel Authorization (ESTA). Visitors are usually admitted for up to 90 days.

The most recent addition to the Visa Waiver program is Chile which was added in 2014. There have also been recent changes to the Visa Waiver program in the United States which limits the ability of some foreign nationals to enter the United States. These limitations are based upon previous travel to certain countries which may raise terrorism concerns. (However that is the topic for another post.)

If you are truly visiting the United States as a tourist, or engaged in certain limited business activities, then traveling to the United States on ESTA is perfectly fine. There are specific business related activities that are allowed in when you enter the country under Visa Waiver. You are allowed to attend meetings, meet with attorneys and potential clients. You are allowed to initiate the process of making an investment or setting up a new office in the United States. But at that the same time you cannot engage in in any conduct that can be perceived as productive employment.

This initial stage of setting up your U.S. business or new office is the perfect time to consult with a business immigration attorney. Your ability to obtain an E-1 Trader visa, E-2 Investment visa or New Office L-1A visa will require the new U.S. enterprise’s ownership structure compliance with immigration laws and regulations.

In fact, the ownership structure of the new company will directly affect an individual’s ability to qualify for a work visa. Certain visas such a H-1B and TN visa (among others) do not allow an owner to self-petition for a visa. Before embarking on any type of productive employment or investment in the United States the best first step is to work a with a qualified business immigration attorney who can help guide you through the process. A preemptive consultation can save you time, money and your future ability to obtain a visa in the United States.  A consultation now can protect you from a world of unnecessary costs, issues and possible exclusion from the United States in the future.

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