Working with an ESTA: allowed or not?
Under most circumstances, working in the USA with an ESTA is allowed. The services performed must fall under the definition of a "business trip". The most important requirement to qualify a trip as a business trip, is that you do not enter into employment with an American company. Read below if your work falls under a business trip, and an ESTA is therefore sufficient for your travel plans.
Business trip with an ESTA
Many business traveller make use of the visa, when an ESTA would have worked just as well. The rules surrounding working in the United States with an ESTA are often broader than initially thought. An ESTA does not just suffice for a holiday or a business meeting, but also for performing paid work in the USA. It is essential that the traveller with an ESTA does not enter into service with an American employer. As long as the traveller only receives compensation from the employer in the home country, the trip qualifies as a business trip, and an ESTA is sufficient.
Work that is permitted
In the United States, working with an ESTA is allowed in the following situations:
- A business event is attended, like a fair or conference
- An introductory meeting takes place, such as with (potential) business partners
- Negotiations take place with an American client or supplier
- A product or service is delivered to an American client
- An installation, control or repair service is taking place
- Advisory services are taking place with an American client
Work that is not permitted
Firstly, it is expressly forbidden to use an ESTA to enter into employment with an employer located in the USA. However, even if the traveller remains in employment with the employer in the home country, there are a number of services that are excluded. In the following cases, an ESTA does not suffice, and a US visa has to be applied for. Services are performed relating to:
- Starting an organisation/company in the USA
- Preparing or performing a corporate takeover
- Investing in companies located in the USA
- Performing media productions or journalist activities
An example of legal work with an ESTA
The following example of the formation of a partnership with American partners can happen entirely with trips made with an ESTA. A European machine factory wants to enter the US market. To this end, multiple business-related trips are made to the USA, each one lasting less than 90 consecutive days. The employees of the European machine factory might be working in the USA, but they remain in service to the European machine factory. This European machine factory bills the performed services to the American client.
During the first business trip with an ESTA, a conference is visited where clients and suppliers meet. Here, the US company is introduced that has interest in a machine from the foreign supplier. During the second trip to the USA, concrete plans are made; a technical design is discussed, and the price is negotiated. During the third business trip, an American sub-supplier is contracted; an American company that sells parts of the machine to the European company, and partially delivers at the location of the American client, and part in the European machine factory.
During a fourth business visit in the USA, the machine is installed in the factory of the American client. The machine is also extensively tested and adjusted where needed. During a fifth trip, the machine is monitored to see if it meets the expectations, and an advisory report is written to keep the machine operational as efficiently as possible. The above-mentioned five business trips to the USA are all possible with an ESTA. Applying for a visa is therefore not necessary.
