By Maud Poudat | US Immigration Attorney
Posted: July 25, 2021
Following our last article, Can I Extend My ESTA, we’ve received a number of related questions on the Visa Waiver Program. Many clients asked us if they can work under ESTA, wanted more information on the application and likelihood of approval, and wanted to know if they need to update their ESTA if certain information has changed. We’ve answered all these questions in one short, easy-to-follow article. If you need more information about applying for the Visa Waiver Program, or ESTA, read on.
Working for a U.S. corporation (for example, a subsidiary of a foreign employer) or performing actual work in the United States is not permitted when entering the United States with an ESTA, even if the activity is subject to an agreement with a foreign client outside of the United States.
Business travelers who come to the United States to attend a conference, visit customers (or potential customers) to negotiate a contract, collect data and information that will be assessed and analyzed outside the United States, participate in litigation, or attend meetings for the Board of Directors if they are a director of a U.S. company (please note that “officers” of a U.S. company are not eligible for ESTA) are a different matter. Because they are accountable for the day-to-day activities of the U.S. corporation, executives such as the President or Vice President should normally have work authorization, even if they do not reside in the United States.
Your ESTA application will almost certainly be denied if you have previously been denied a visa, refused admission to the United States, or removed from the country. It's preferable to disclose the truth and then apply for a visa rather than risk getting deported for fraud upon entry in the United States.
All responses must be accurate. If the Customs Officer has any doubts about your admission motivation when you arrive, you may be refused. Furthermore, receiving an ESTA does not ensure admission by the Customs Officer.
It's important to note that if you answer "Yes" to even one of the questions, your ESTA application will be denied. You can, however, reapply if you replied "Yes" by mistake. This time, choose the correct answer and reapply for an ESTA.
The ESTA application's inquiries are designed to keep out passengers who potentially pose a threat to the United States by reviewing applicants' previous arrest histories and criminal records. If your status has changed to "Travel authorization declined," check for any errors in the information you entered and/or the responses you selected.
Your application will be processed immediately after you have finished the payment for your ESTA application. It is no longer feasible to update or adjust your previous answers after that point. It will also be impossible to withdraw your application. In any case, this isn't always essential. Your ESTA will be valid for a period of two years; however, you will only be authorized entry in the United States for 90 days.
The ESTA stays valid in many situations, and you do not need to make any changes if:
Subsequently, your new ESTA application will more likely be denied, so instead you should aim to apply for a tourist visa to the United States at your nearest U.S. Consulate or Embassy.
If you attempt to enter the United States with a valid ESTA but the above circumstances which would require you to apply for a new ESTA applied to you, then you may be refused entry on your next visit. Worse, you could be found that have committed fraud on any application for admission to the U.S. or future visa application. This could have a serious impact on your future immigration to the United States.
Yes, you may but it is not recommended as an overstay of even 1 day will cause you to get your ESTA cancelled.
If your ESTA gets cancelled or denied, you will have to apply for a tourist visa (B1/B2) at a U.S. Embassy or Consulate in your country of residence. Make sure you document your ties to your home country and the purpose of your visit to the United States. Once you receive this visa, you will be able to travel to the United States for a period of 6 months instead of the 90 days period provided by the ESTA.
We don’t recommend you spend more than 6 months cumulatively per year on ESTA. You should be able to take several trips of short duration or 2 trips of 90 days each within one calendar year. The Customs officer will look at the totality of the circumstances as there are no set rules on this. Make sure you document your ties to your home country such as employment or home ownership. You should also have valid reasons for your visit to the U.S., whether it is for tourism or business, and you should also be able to document the same.