5. februar 2023

B1/B2, Visa Waiver Program and the ESTA, What’s Right for my Temporary Travel to the U.S.?

Beau Russell

Another issue that comes up frequently with business and pleasure travelers to the U.S. is deciding on what type of visa they need to enter the United States when it comes to brief travel. The question is often, should I simply apply on the ESTA (Electronic System for Travel Authorization) under the visa waiver program or should I apply for a visa at the consulate? The answer, as attorneys will always say, depends. In the case of temporary travel, as is the case with nearly all immigration cases, it depends on the nature and duration of the travel.

As an initial matter, it is always important to mention that the B Visa, whether for tourism or business or whether completed on the ESTA or applying at the consulate, is for temporary non-working or studying purposes. There are specific activities you can engage in within the U.S. on this visa. Otherwise you are violating your immigration status. For instance, taking a tour of the Grand Canyon = OK, helping at your Uncle’s restaurant for the summer and getting paid in cash and housing = NOT OK. Taking a week long course in wine-making in Napa = generally OK, enrolling in an Summer course at a University for credit = NOT OK.

Now that that is out of the way, let’s take a look at the basics of the two options. First we’ll look at the Visa Waiver Program and then the B2 Visa. Denmark is fortunate enough, sorry Poland, to be on the list of countries that are allowed to forgo the visa application process, including an interview, and simply register their travel through the Electronic System for Travel Authorization (ESTA) under the Visa Waiver Program. This allows the traveler to apply for their visa, a B Visa, at the airport when they enter the United States (the ESTA is not a visa). Once admitted at the U.S. border, the traveler will receive 90 days for business or tourism. It is a fairly simple process but what is often not known about the visa waiver program is that it is called the visa waiver program for a reason. While the Visa Waiver Program allows the traveler to enter the United States for up to 90 days without first obtaining a visa, the traveler is also waiving their right to contest deportation or to extend their visa. Therefore, the traveler must leave the United States before the 90 days is up and cannot ask for more time or fight their case when the government says “get out”.

Applying for the B Visa before you travel, reserves these rights. It also allows you to stay for up to 6 months rather than the 90 days. To obtain this visa, however, you must apply in person at the consulate. This process is more cumbersome because you must provide some documentation about your travel and be prepared to explain why you need the visa. But again, if the visa granted the benefit is twofold, you are allowed more time in the U.S. and you are also afforded the ability to extend your stay in the case you are not finished with your business after six months.

So to summarize, when you are applying for either the ESTA or a B Visa at the consulate, you are essentially applying for the same thing, the B Visa. The ESTA simply allows for you to apply at the port of entry with the immigration officer for a 90 day or less trip. The other option is applying before you go with the Consulate and then you are afforded a longer time and the flexibility of extending your travel.

So, those travelers who are heading to Hawaii for a family vacation or to New York for a week to meet clients, stick with your ESTA applications without fear. It will save you time and money, and there is no need to involve attorneys in the preparation. In the situation where you are unsure about how long you will need to complete your business activities and are sure that you will need more than a couple months to do it, the B Visa is the better bet. And lastly, remember that you are required to apply for a B Visa if you have ever been denied any type of visa before and you are not allowed to “work” in the U.S. for a U.S. company when you do go.

As always, if you have questions or concerns about what type of visa is right for you, consulting with an experience immigration attorney is always a wise first step. At Thomas Thorup Law, we can assess your business travel plans and set out the step by step process it takes to travel to the U.S. without issue. We have experience in each step of the process from business formation to immigration visas and beyond. We have a unique perspective because we are both Danish and American attorneys who have helped countless individuals take their business abroad. We can walk you through the steps it takes to take your business or idea to the U.S. and set you up to follow your American dream.

Beau Russell is a U.S. Immigration attorney located in the Copenhagen Area. For the past several years in California he has helped hundreds of individuals solve their U.S. Immigration issues. Beau joined THOMAS THORUP LAW in 2015 and works from our Copenhagen Offices. His specialty is assisting businesses and families obtain non-immigrant/temporary visa and permanent/immigration visas (“green cards”) to the U.S.