What Businesses Need to Know When Employees Travel to the US under ESTA and VWP

Photo by yousef alfuhigi on Unsplash.

Author: Ty Leitow

Last Updated: April 1, 2024

Traveling to the US for business can be relatively easy and inexpensive if the traveler qualifies for the Electronic System for Travel Authorization (“ESTA”) under the Visa Waiver Program (“VWP”).

Background on the ESTA and VWP.

The VWP was established in 1986 by the Immigration Reform Control Act, which allows nationals from 41 countries to enter the US for up to 90 days as non-immigrants for business or pleasure without a visa.[1] Today, VWP countries include:  

·       Andorra

·       Australia

·       Austria

·       Belgium

·       Brunei

·       Chile

·       Croatia

·       Czech Republic

·       Denmark

·       Estonia

·       Finland

·       France

·       Germany

·       Greece

·       Hungary

·       Iceland

·       Ireland

·       Israel

·       Italy

·       Japan

·       Latvia

·       Liechtenstein

·       Lithuania

·       Luxembourg

·       Malta

·       Monaco

·       Netherlands

·       New Zealand

·       Norway

·       Poland

·       Portugal

·       San Marino

·       Singapore

·       Slovakia

·       Slovenia

·       South Korea

·       Spain

·       Switzerland

·       Taiwan

·       United Kingdom

In 2008, to enhance security and border protection, the US Department of Homeland Security implemented the ESTA as a method of screening travelers utilizing the VWP.[2] Generally, ESTA is a fully automated, electronic system, for screening travelers before they travel to the US under the VWP. With ESTA authorization, foreign nationals may travel to the US for up to 90 days for business or pleasure/tourism without a visa.

While VWP and ESTA have made travel to the US relatively easy, there are several key things companies and business travelers need to know before arriving to the US under an ESTA.

Application, Fees, and Timing.

To use ESTA under VWP, you must have an electronic passport or “e-Passport”, which includes a special chip.[3] After you’ve confirmed that you have an e-Passport, the ESTA-traveler should complete an online ESTA application, which may be found here. Currently, the total cost for the application is $21, which consists of a $4 processing fee, and a $17 authorization fee that is collected when you are approved to travel to the US.

After the application is submitted, an ESTA application number will be provided. Processing an application may take up to 72 hours. Each approved ESTA application is valid for two (2) years and may be used for multiple visits within that period without needing to apply for another travel approval.[4]

CBP, Customs, and Arrival to the US. 

An ESTA allows travel to a US port-of-entry (e.g. an airport), but does not automatically allow entry into the US.[5] Instead, the US Customs and Border Patrol (“CBP”) agent at customs will ask the ESTA-traveler some basic questions, and depending on the answers, may reject his/her entry into the US.

ESTA-travelers are only authorized to do certain business and tourist activities while in the US, and if the CBP agent believes your plans and purpose for being in the US are in violation of ESTA and WVP regulations, the ESTA-traveler may be sent back to his/her country of origin. Common reasons for rejection include intending to stay in the US for an extended period of time (ESTA only permits stays of 90 days or less) and providing misleading information on an application.  

ESTA travelers do not have a right to appeal a decision to refuse entry.[6] Additionally, a refusal of entry is filed in the traveler’s CBP records and could lead to future issues with US immigration applications or attempts to enter the US.

Both the company and employee-ESTA travelers need to understand ESTA and VWP rules and requirements before attempting to enter the US under ESTA.

Permissible Activities.

For international businesses, one of the most important considerations for ESTA is understanding what activities are, and are not, allowed when traveling to the US under an ESTA. Generally speaking, an ESTA traveler is only permitted to perform the following business activities:

1. Consulting with business associates;

2. Traveling for a scientific, educational, professional, or business convention, or conference on specific dates;

3. Settling an estate;

4. Negotiating a contract;

5. Participating in short-term training.[7]

As a practical matter, companies and employees considering travel to the US under ESTA need to understand that the ESTA-traveler may only attend meetings or consultations, provide limited training, participate in business conventions or conferences, or engage in business negotiations.[8]

Additionally, a traveler under an ESTA may participate in tourism activities, such as: vacations, visiting friends or relatives, receiving medical treatments, and attending social events.

Non-Permissible Business Activities.

Business travelers entering the US under an ESTA are not allowed to carry out any productive work, regardless of where the employer is located.[9] This means ESTA travelers are not allowed to perform any professional work, or skilled or unskilled labor, and includes the following prohibited activities:  

1. ESTA-travelers cannot accept employment;

2. ESTA-travelers cannot accept renumeration from a US source for any productive work;

3. ESTA-travelers cannot perform productive work, even if it’s unpaid;

4. ESTA-travelers cannot perform any activities that represent “gainful employment”.[10]

Practically speaking, an ESTA traveler may not enter the US to perform his or her normal job duties, or work activities that are related to his/her job duties, unless such work is explicitly permitted under ESTA regulations (e.g. consulting, training, negotiating, etc.).

ESTA Best Practices.

To properly use ESTA for business travel to the US, the company and employee-ESTA traveler need to understand how ESTA works, and how ESTA should be used. ESTA guidelines and instructions should be included in the company’s travel and immigration policies. For management, ESTA utilization should be reserved for employees who’s planned business activities align with ESTA requirements. For employees who intend to perform work activities not allowed under ESTA, proper time and planning should be afforded to obtain the proper visa, such as an L visa.

In addition, for ESTA-travelers, the company should provide basic guidance on the customs process. In circumstances where the traveler is not conversational in the English language, there can be significant confusion and misunderstandings when answering questions describing prohibited work versus permitted business activities. Such confusion and miscommunications can result in the ESTA-traveler being rejected at customs, even if his/her actual intent was to perform business activities allowed under ESTA. Domestic companies who will be engaging with ESTA-travelers sometimes provide “Invitation Letters” to the ESTA-traveler, which clearly describes the purpose and activities of the visit. The ESTA-traveler can then present the Invitation Letter to customs upon arrival when asked about his/her plans while in the US. These Invitation Letters help lend support and credibility to ESTA-travelers at customs.

[1] Congressional Research Service. (October 12, 2021). Visa Waiver Program. Accessed March 18, 2024. https://sgp.fas.org/crs/homesec/RL32221.pdf

[2] US Department of State – Bureau of Consular Affairs. (August 1, 2008). DHS Announces Implementation of the Electronic System for Travel Authorization (ESTA) for Visa Waiver Program (VWP) Travelers. Accessed March 18, 2024: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/visas-news-archive/20080801_dhs-announces-implementation-of-the-electronic-system-for-travel.html#:~:text=ESTA%20is%20a%20new%20fully,travelers%20on%20January%2012%2C%202009.

[3] USA.Gov. Visa Waiver Program and ESTA Application. Accessed March 27, 2024: https://www.usa.gov/visa-waiver-esta

[4] USA.Gov. Visa Waiver Program and ESTA Application. Accessed March 27, 2024: https://www.usa.gov/visa-waiver-esta

[5] US Customs and Border Protection. Electronic System for Travel Authorization. Accessed March 18, 2024. https://www.cbp.gov/travel/international-visitors/esta

[6] NNU Immigration. (July 27, 2023). ESTA Business Travel Rules. Accessed March 18, 2024. https://www.nnuimmigration.com/esta-business/#:~:text=What%20are%20the%20permissible%20ESTA,Visiting%20relatives

[7] US Citizenship and Immigration Services. B-1 Temporary Business Visitor. Accessed March 18, 2024. https://www.uscis.gov/working-in-the-united-states/temporary-visitors-for-business/b-1-temporary-business-visitor

[8] Masuda Funai Eifert and Mitchell (June 27, 2023). Surprise Denials of Entry to the US under VWP Using ESTA. Lexology. Accessed April 1, 2024: https://www.lexology.com/library/detail.aspx?g=6f7c3dd2-9940-4134-b708-43a5e2486176

[9] NNU Immigration. (July 27, 2023). ESTA Business Rules. Accessed March 18, 2024. https://www.nnuimmigration.com/esta-business/#:~:text=What%20are%20the%20permissible%20ESTA,Visiting%20relatives

[10] Davies Legal. What Constitutes ‘Permissible Activities’ Under ESTA or the B-1 Business Visa? Accessed March 18, 2024. https://davieslegal.com/news/what-constitutes-permissible-activities-under-esta-and-b-1-business-visa/ ; Masuda Funai Eifert and Mitchell (June 27, 2023). Surprise Denials of Entry to the US under VWP Using ESTA. Lexology. Accessed April 1, 2024.