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Increased scrutiny by CBP for frequent ESTA business travelers

20 Mar

After less than two months into the new Trump Administration, the President has issued two Executive Orders imposing a temporary travel ban on foreign nationals from certain predominantly Muslim countries, and both have been subject to Temporary Restraining Orders (TRO).   With respect to a temporary Muslim ban, the Trump Administration is now zero for two.  But this does not mean the Administration is unable to increase the scrutiny or vetting of applicants and travelers to the United States.

Foster clients and others recently have reported additional scrutiny and unusual lines of questioning when entering the United States, whether on a work visa or as a business visitor under the Visa Waiver Program (ESTA).  In fact, travelers under the Visa Waiver Program may be questioned more heavily in some cases because they have not been previously interviewed and heavily vetted prior to travel.

Citizens of countries who are eligible for ESTA travel may enter the United States without a visa to engage in brief business or tourist activities. While convenient, ESTA is not for everyone.

Clean Records Only – First, ESTA is appropriate for individuals with a “clean” record. Travelers who have been arrested for certain crimes, even with no conviction, are ineligible for ESTA travel. Generally applicants should avoid ESTA if any of the pre-screening questions must be answered “yes.”

Applicants should understand that a misrepresentation on the application could itself be grounds for denial, and could adversely impact future immigration applications.  Some applicants mistakenly choose to respond “no” to the question regarding previous arrests, believing that the passage of time since an arrest or the perceived unavailability of records mitigates a particular incident. This approach is ill-advised given the level of intergovernmental data sharing and the fact that misrepresentation may in the future become grounds for denial of a visa application or refusal of admission to the United States.

Bona Fide Business Activity – Even when ESTA is suitable travelers must know when not to push the limits of the program. This is especially true when it comes to business visitors who must satisfy the immigration officer that their business activities do not involve “work.”

In the context of ESTA business travel, “work” is a four-letter word. True, business travel could be described as traveling ‘for work,’ but for immigration purposes it is extremely important to understand the distinction. Instead of traveling for work, an eligible traveler under the ESTA program must be “traveling for business.”

Permissible ESTA business activities relate to the traveler’s profession, but do not involve hands-on work. Generally permissible activities relate to and benefit the traveler’s work outside the United States, do not result in remuneration from any U.S. source, and do not involve performing in a role normally filled by U.S. workers. Attending a business meeting or negotiating a contract generally is permissible.  Implementing an SAP rollout generally is not.

Managing or directing a U.S. organization or project, even short-term, is not considered a permissible business activity under ESTA, even if the U.S. organization is related to the foreign employer.

No Questionable Travel Patterns – ESTA travelers who are careful to limit their activity to only permissible activities may still encounter stricter scrutiny if they have a recent history of trips to the United States for nearly the 90-day ESTA limit, especially if those trips were separated by short periods of time outside the United States.  Even frequent trips with a pattern of only a few weeks in the United States and a few weeks abroad, repeated over time, could raise concerns.

Travelers should be prepared to provide documentation to support eligibility, such as proof of return travel booking and recently dated evidence of foreign residence and employment. Depending on the frequency of travel and the nature of activity, it may be prudent to obtain a formal “Port of Entry letter” explaining the need for the trip and the bona fide nature of the business activity.

As a final word of caution, ESTA travelers should not assume that successful prior trips ensure the success of future admissions.  Travelers should make sure each trip meets the requirements for business travel, and when in doubt, contact qualified immigration counsel.

Keeping these tips in mind and planning ahead should decrease the likelihood of difficulty during the immigration inspection process. A pleasant demeanor and being respectful can go a long way as well.