What are the permitted activities on Visa Waiver Program?

The Visa Waiver Program (“VWP”) allows nationals from 43 countries to enter the United States for periods of up to 90 days as temporary visitors (nonimmigrants) for business or pleasure without first obtaining a visa.

Generally, temporary visitors for business or pleasure must obtain a visa from Department of State (DOS) officers at a consular post abroad before traveling to the United States unless they are nationals of one of the countries that participates in the VWP.

The VWP is like a B-1 visa because it allows citizens of participating countries to travel to the U.S. for business activities like attending conferences, consulting with business associates, and negotiating contracts, as well as tourism. Neither VWP or B-1 Visa holder can come to the United States to perform skilled or unskilled labor. See 9 FAM 402.2-5(B)-(C)

Thus, a visitor may not engage in any gainful employment. In other words, a visitor may not add value to a service or a good produced in the United States. A strict interpretation of this general principle virtually rules out providing most face-to-face instructional, supervisory or project management roles by visitors.

Performing services without proper work authorization can expose both the visiting foreign national and the company receiving such services to immigration, criminal, and tax consequences. This is true even when the visiting foreign national remains employed and compensated from a company abroad, if this adds value to products or services in the United States.

Recently, the South Korean car manufacturer Hyundai recently had roughly 400 workers arrested and deported from the United States. Most of these workers were B-1 or VWP entrants.

There are only a very few exceptions to the general prohibition of employing foreign nationals entered with a B-1 Visa. For example, a B-1 visa may be granted to specialized workers going to the United States to install, service, or repair commercial or industrial equipment or machinery purchased from a company outside the United States, or to train U.S. workers to perform such services. In addition, there are cases in which a foreign national who qualifies for H-1 (specialty occupation) or H-3 (trainee) visas may more appropriately be classified as B-1 visa applicants.

The process of using offshore vendors to provide services for the benefit of a U.S. Company does not insulate the same from potential liability if it knowingly benefits from unauthorized work performed in the United States, even if such employment occurs sporadically.

Title 8 U.S.C. § 1324a(a)(1)(A) makes it unlawful for any person or other entity to hire, recruit, or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien, as defined in subsection 1324a(h)(3). Subsection 1324a(2) makes it unlawful for any person or entity, after hiring an alien for employment, to continue to employ the alien in the United States knowing the alien is or has become an unauthorized alien with respect to such employment. Subsection 1324a(f) provides that any person or entity that engages in a “pattern or practice” of violations of subsection (a)(1)(A) or (a)(2) shall be fined not more than $3,000 for each unauthorized alien with respect to whom such a violation occurs, imprisoned for not more than six months for the entire pattern or practice, or both.