Visa-free travel to the USA is generally preferred by business travellers since it requires substantially less planning, expense and effort than having to obtain a US visa.

However, only qualifying individuals may take advantage of the Visa Waiver Program (VWP). Among the eligibility requirements for the VWP is that the individual is a national of a qualifying VWP country, that have been granted ESTA approval, that they will stay in the US for no longer than 90 days and that their reason for travel is permissible.

If you are denied ESTA, you cannot travel visa-free and cannot appeal the decision. You will instead have to apply for a relevant US visa, such as the B-1 business visitor visa, and potentially also a waiver of inadmissibility if the denial was on the grounds of a past criminal conviction.

ESTA travel for business purposes

While the VWP permits certain business-related activities, these are extremely limited and business travellers should be aware that they may be questioned at the border as to their reasons for travel.

Even where ESTA is granted, this does guarantee entry into the US. Where immigration officials are not satisfied that your plans fall within the permitted activities for visa-free travel, you may be refused admission into the US, with no rights for an appeal. This refusal will be filed on your records and could lead to issues with any future US immigration applications or attempts to enter the USA.As such, if you’re planning to travel on business, it’s important to ensure your reason for travel is permitted under the VWP, and where not eligible, that you secure the relevant visa in advance of travel.

What are the permissible ESTA business activities?

Provided you hold valid ESTA authorization, the following activities will be permissible for visa-free travel to the US:

• Attending business meetings
• Consulting with business associates
• Attending business convention, conference or trade show as a delegate
• Negotiating contracts
• Project scoping
• Attending short training programs
• Tourism
• Visiting relatives

Carrying appropriate paperwork with you when you travel, supporting your planned activities, is recommended as you may be asked questions at the port of entry also your reasons for travel. This could include a letter from your employer on company letterhead, detailing your itinerary and reason for travel.

Non-permissible business activities

If entering the USA visa-free, travellers are not authorised to carry out productive work, regardless of where the employer is located. This means you cannot work or undertake paid or gainful employment or study during your period of ESTA stay.

Conducting leadership and management training seminars or other training events, is also not permissible under the VWP.

For any of the above activities, you will need to apply for the relevant US visa.

What is the difference between permissible ESTA business activities and employment?

The key points of differentiation are that VWP activity should not deprive a US resident worker of employment opportunity, and that the traveller will not be remunerated from a US-based source.

How long is ESTA valid?

If you have been granted ESTA approval, this last two years or up to the date of your passport’s expiry, whichever is earlier.

This means you can travel to the US under the VWP for multiple trips, provided your passport remains valid and your reason for travel is within the permissible activities.

In addition, each individual stay can be no longer than 90 days and you cannot spend more than a total of 180 days in year in the US under the VWP.

Importantly, ESTA does not grant the holder permission to remain in the US for two years.

If your ESTA validity expires during your time in the US, this will not affect your 90 day period of stay.

However, remaining in the US beyond your ESTA permitted stay of 90 days will be deemed overstaying and is likely to impact your future US immigration applications.

Can you renew ESTA authorization?

Once you have been granted entry into the US under the VWP, your authorization period begins on this date. It will not be possible to apply to extend the 90-day limit, or to change your status by applying for a US visa, from within the US.

You must leave the US on or before the date stated on your admission stamp.

If you intend to make a new visa application or to reapply for ESTA, you will have to do this form outside the USA.

Can you reset the clock on the 90-day limit?

Leaving the US temporarily every 90 days is not an approach that would generally be advocated. It is likely to raise questions at the border as to your intentions and planned activities while in the US being within the scope of the VWP.

Note also that you cannot reset the 90-day ESTA clock by leaving the US for a neighboring country such as Canada or Mexico and returning shortly after. This time will be counted within the ESTA authorization period.

Does frequency of travel matter?

Frequent ESTA travellers may find they attract the attention of border officials but provided your activities fall under the VWP and you can explain if asked at the border as to your plans for the trip, there shouldn’t be an issue being granted entry.

If you are uncertain about your eligibility and use of ESTA for business purposes, taking advice will help to avoid issues at the border or disruption to your planned activities. In some cases, this may mean making an application for an appropriate visa before you travel, for example if you are a media professional travelling on assignment. For advice on your circumstances, contact our specialist US business immigration attorneys.