In light of recent U.S. policy changes with respect to immigration enforcement and border control, it is important to be prepared for heightened questioning when entering the United States. Citizens of countries participating in the Visa Waiver Program (“VWP”) can generally enter the United States without a visa for stays of ninety days or less, as long as the individual has been authorized under the Electronic System for Travel Authorization (“ESTA”) (Visit https://www.cbp.gov/travel/international-visitors/esta or consult an immigration attorney for more details). Therefore, if you are traveling to the U.S. as the employee of a foreign (i.e., non-U.S.) company to check on the operations of that company’s U.S. subsidiary, and you are authorized under the VWP and ESTA, you are entitled to enter the United States without a visa.
However, when a U.S. Customs and Border Protection (“CPB”) officer asks you questions about your purpose for traveling to the United States, it is best to limit your answer to (1) inspecting the U.S. subsidiary’s operations and/or (2) attending meetings. Other employment-related activities may trigger the CPB agent to mistakenly conclude that you are an employee of the U.S. subsidiary, and therefore, that you require an employment visa. To ensure that you can answer a CPB officer’s questions correctly and without confusion, we have outlined below what you should not say when being questioned by a CPB officer:
(1) that you have authority to supervise, hire or fire employees of the U.S. subsidiary
(2) that you are an employee of and/or are paid a salary by the U.S. subsidiary
(3) that the U.S. subsidiary is covering the costs of your trip, lodging, etc.
One way to facilitate the entry process is to present to the CPB officer an attorney letter confirming the purpose of your U.S. visit (only present the letter if he/she asks about your business activities in the United States). If you will be traveling frequently to the United States for the purpose discussed above, it would be prudent to have such a letter on hand.
Please contact our office if you would like us to provide you with an attorney letter for the next time you visit the United States to check on the activities of your U.S. subsidiary. If you have additional questions related to visas and other immigration matters, please consult your immigration attorney or allow us to make a referral.
Disclaimer: No Legal Advice or Attorney-Client Relationship
The information and materials available in this article are for informational purposes only and are not intended to and do not constitute legal advice, a solicitation for the formation of an attorney-client relationship, or the creation of an attorney-client relationship. The information provided may not apply to your particular facts or circumstances; therefore, you should seek legal counsel prior to relying on any information that may be found in this article. Furthermore, information provided in the article may not reflect the most recent and/or all developments in the law.