PART ONE

Visitor Visas and Business Travel – USA

Contributed by Chris McHattie and Ed McGinty

We’ve all seen it; the poor soul being “interrogated” by the “militaristic” Customs and Border Protection (“CBP”) Officer. As you walk by you, he’s being escorted behind the “mirrored glass” for further questioning. Later, you wonder what ever happened to that guy…

• Do you have business interests in the US?
• Do you utilize a Visitor Visa or ESTA to conduct that business?
• If you were barred from the US, would it damage that business?

CBP Officers have enormous discretion at the airport. You could be doing everything right, doing only what is lawfully permitted on your Visitor Visa, but that won’t stop the CPB officer who’s either having a bad day or is out to prove something from interrogating you and deciding to pull you out of line for “heightened scrutiny.” If that happens, the CBP officer will start asking more difficult and tricky questions and may even ask to inspect and go through your phone or laptop (this is true even if you’re a US citizen – that is something they are allowed to do). If the CBP officer finds text messages or emails discussing business activity you will be conducting while in the US, he has the authority to consider that “evidence” that you intend on “working” in the US and prevent you from boarding your plane, send you back to your home country and terminate your Visitor Visa. So, you have to remember it isn’t necessarily what the law is, it’s how the individual CBP Officer interprets it when you’re being questioned. For more on navigating the CBP interview see “Part Two” below.

Assuming the CBP Officer’s conclusion that you were on your way to “work” in the US was wrong, can you appeal? Sure. Will you prevail on an appeal? Sure – months after the unwarranted interrogation and “deportation”. And, of course, you could also lose the appeal and if that happens it will negatively impact your ability to get Visa in the future. Can you afford to be barred from the US for 6 months or longer? For most of our business clients the answer is absolutely not.

The above is, unfortunately and not surprisingly, a real-life story. And, of course, it could not have happened at a worse time, that client was just getting his US business off the ground, and he was the main player in that effort. Fortunately, he did have a pending employment visa application and we were able to unravel much of the mess that the CPB officer caused, but damage was done.

As a result of that and other client stories, we’ve taken to our keyboard to help you avoid the foregoing and tell you this: If you are planning on opening or already have opened a business in the US, you most likely already qualify for an employment or investor visa and its probably worth it once your travel either becomes or looks like it will become more regular.

Visitor Visas and ESTAs (visa waivers) allow you to do “business” while in the US, but you are not allowed to “work.” This can be confusing for the business traveler who is “working” for the foreign employer, and thus the issue becomes the difference between “working for the foreign employer” (“business”) and actually doing work a US employee can do equally as well. The basic rule of thumb to distinguish between what is “business” versus what is “work” is whether the business activity could have reasonably been done by a US worker. For example, if you are coming to the US to find office space for your business, that’s business, not work. Searching for an office and signing a lease is perfectly acceptable “business” conduct because you wouldn’t hire an employee to find and choose office space at the beginning of your venture. However, if you are entering the US to paint the office you already rented, that is “working” because a US worker could have been contracted to paint the office. Another way to think about this is to recognize that you can help make business decisions, but you can’t do the work to implement those decisions. Generally, lawful “business” conduct while on a Visitor Visa is defined by three main factors: (1) it is legitimate commercial or professional activity and not local employment or labor for hire, (2) you intend on continuing your foreign residence, (3) your principal place of business and accrual of profits (and paychecks) are occurring in a foreign country. Examples include meeting with government officials (state representatives for example) and realtors to choose a location for your new US venture; meeting with attorneys and accountants; meeting with employees from an ownership or “home office” managerial perspective. Elements common to all these examples are: (a) you’re leaving/returning home after your business here is done; (b) you’re here to hire, employ and manage US employees – they want you to hire American citizens; and (c) it is typically “white collar” managerial business duties, not “blue collar” actually performing the “work.”

Visitor Visas are perfect for the preliminary stages of opening a business in the US. However, as you start to move towards the “execution stage” of opening a US business, your conduct will necessarily veer away from what is lawful activity on a Visitor Visa and towards what would be considered “working” in the US. When it gets to that point, we highly recommend applying for an appropriate visa; the likelihood of trouble and the potential cost of not doing so is just too great.

In addition to our business law services, we at McHattie Law specialize in employment and investor visas and can identify the right vehicle for your business travel needs. We look forward to speaking with you.

PART TWO

How to Prepare for Questions at the US Border on a Visitor Visa or ESTA

An Immigration Attorney Answers Tricky Questions Of A Customs And Border Protection Officer As If He Was A Business Traveler Entering On A Visitor Visa or ESTA

Entering the US on a Visitor Visa and dealing with Customs and Border Protection (CBP) Officers can be a nerve-racking affair. But there are things you can do to minimize the chances having a bad experience. Chief among them is being prepared for the process and the questions that can be tricky for a business traveler entering the US on a Visitor Visa or ESTA (visa waiver). 

The most common pitfall for business travelers entering the US on a Visitor Visa is the CBP officer suspecting that you are intending on “working” in the US. While you are permitted to do “business” in the US, see Part One of this article, on a Visitor Visa, you are not allowed to “work” while here. The basic rule of thumb to distinguish between what is “business” versus what is “work” is whether the business activity is normally or could have reasonably been done by a US worker. For example, perhaps you are coming to the US to find office space for a business you plan on opening. Searching for an office and signing a lease is perfectly acceptable “business” conduct because hiring a US worker for that express purpose is neither normal or reasonable to expect. However, if you are entering the US to paint the office you already rented, that could be considered “working” because a US worker could have been contracted to paint the office.

            While every entry and CBP officer is unique, there are some typical questions you should be prepared for, some potentially tricky questions that some of our business traveler clients have been asked by CBP officers and guidance on how to navigate them.

Questions

1. What is the purpose of your travel to America?

You are not required to give a comprehensive answer to basic questions such as this. You can always start with you will be “seeing the sights and visiting friends.” There is no legal definition of “sights” or “friends” so you are free to use those terms as you see fit, within reason. If pressed at all, you can explain that you are going to look at a potential office “sights”, and you are free to refer to the people you will be visiting with, your lawyer and accountants for example, as “friends.” The CBP Officer will likely end this line of questioning there.

If they press you for a more detailed answer, answer honestly: You are here to visit with, your lawyer and accountants who are friends and to look at potential office sights. You can explain that you are also doing research on possible business opportunities or attending a business meeting, for example. You are most likely going to have people you plan to meet with when you arrive, if they ask who you are visiting, say their names. If they want more detail, when addressing any of your business conduct your answer should be tailored to the rule of thumb mentioned above. Avoid giving answers that sound like you could have, or should have, hired an American worker to do it. Also keep in mind that if things go sideways with the CBP officer they are authorized to go through your electronic devices and there may be texts or emails outlining specifically what kind of “business” you are doing in the US. Be prepared to talk about that with the rule of thumb in mind or be sure you do not have texts and emails that are going to cause you problems.

2. Do you plan to work during your travel in US?

It is not illegal to do work for your foreign company while you are in the US such as exploratory research, meeting with lawyer and accountants, conducting management and other “ownership” tasks, logging onto your computer or conducting activity that furthers your foreign company’s business interests while you are here in the US – as long as:

(1) it is legitimate commercial or professional activity and not local employment or labor for hire, (2) you intend on continuing your foreign residence,

(3) your principal place of business and accrual of profits (and paychecks) are occurring in a foreign country. Therefore, it is acceptable to attend meetings, training, seeing about office space for a potential business venture, sign contracts, etc., but it is generally not ok to say you are doing anything that a US worker could be hired or contracted to do. Remember that a CBP officer has authority to go through your electronic devices and there may be communications that could be interpreted as if you are coming to “work” locally. If questioned about those communications, point out that the three elements noted above apply to your activity.

3. Where are you staying in US? What is your address during your stay? Give me a copy of your hotel reservation?

If you are staying in a hotel, state the hotel name and how long you are booked for. They may ask to see the reservation so make sure your answer is accurate. You may want to print out the hotel reservation or you will be forced to hand over your phone to the CBP officer who has authorization to search it and read your emails and texts. If you are staying at someone’s home, know their name and at least know the town they live in if not the actual address.

4. How long is your duration of stay in US?

If you have a return ticket, state that date. If you do not, make sure your answer is no longer than your permitted stay under your Visitor Visa. Generally, a Visitor Visa is 6 months, and an ESTA is 3 months. You may want to print out the itinerary or else you may have to hand over your phone to the CBP Officer who has authorization to search your texts and emails.

5. How often do you travel to America? When was the last time you have visited US?

Be accurate with this answer. Know the specific dates of your last entry and exit into the US. If you are a frequent traveler and are not sure how often you have been here you can download your travel history here: https://i94.cbp.dhs.gov/I94/#/home

6. What was your last US visit regarding?

You are not required to give a comprehensive answer to basic questions such as this. “Seeing the sights and visiting friends” should suffice, however, if your last stay was long, 3 months or more, they may ask additional questions. You may want to add that you were attending business meetings or conferences, or researching business opportunities, etc. 

7. How will you support your travel in US? Who is paying for your trip? How much money are your carrying in Cash or traveler’s checks? Do you have anything to declare that you are bringing to America?

Ideally, your company is paying your expenses. State that you will be using savings if that’s not the case. Cash that is anywhere close to $10K will likely raise an eyebrow and further questioning. We do not recommend bringing large amounts of cash through the airport. If, however, it is necessary to bring $10K or more through the airport, you must declare it and have a sensible answer for why you are bringing it. You are required to declare any combination of currency and/or other financial instruments that exceed $10K. If the CBP Officer searches your things and finds it, and it is not declared, the “interview” will most likely escalate into an “interrogation”.

8. Where is your next destination after the US? When do you plan to return back to your home country? Where do you live currently? What is your country of residence?

If you are flying somewhere other than back home, you may want to print the itinerary to hand over to the CBP officer in case he asks for proof, or else you will be handing him your phone in which case he may decide to search your texts and emails.

9. Do you have any friends in USA? Can you share details of your contacts in US? 

If you have friends or acquaintances in the US, have their names top of mind, it is easy to draw a blank upon being questioned. You can also list your US business associates as “friends.” It is better to have an answer than not. If you are only meeting with US business associates, know their names, where they work (or live), and what they do.

10. Why are you landing in this city, when your destination is another City?

If you are traveling on, you should have an explanation ready. Perhaps the airfare was cheaper or you were planning on doing something in the city you landed in. The most important thing is to have an answer. When people are asked a question and they give a blank stare or fumble around for an answer, CBP officers can interpret that as you are trying to hide something.

Crossing the US border can be a “breeze” or a harrowing experience. Being properly prepared for the questions a CBP Officer may ask can prove to be the difference between “breezing through” or needing a Xanax after it is over. Keeping the above information in mind will go a long way to insuring an easy entry.

One final point: if you find that your honest, unvarnished answers to these questions regarding your business conduct are brushing up against the limits of what you can legally do on a Visitor Visa, and you plan to, or have already opened a business in the US, you may already qualify for an employment or investor visa. There are numerous advantages to having an employment or investor visa; chief among them is not having any insecurity as to when or why you want to enter the US or how long you plan to stay. With an employment or investor visa you can stay in the country for as long as the visa is valid (typically 3 years) and you have to option to extend or even file for permanent residency.

In addition to business and intellectual property legal services, we at the McHattie Law Firm are prepared to help you with your employment law and investor visas and employment-based permanent residency (green cards). We look forward to hearing from you.