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My Company (based in Germany) has been awarded a project (4 weeks) in the United States for an American client.

Three of us will go, all with European passports on the Visa Waiver Program. we can all get ESTAs without any issues, and I actually have one still valid from last year.

However, I cannot find a definite answer whether we are allowed to work for our European company for an American client, on American soil. All references seem to focus on long-term or remote work.

As Europeans, do we need specific visas to be employed by our European company but work short-term in the USA?

As a follow-up question, what should we tell immigration when we land? I know they usually ask questions about purpose of the trip etc.

EDIT: The purpose of the trip is a risk assessment in the Client's plant, which amounts in layman terms to 4 weeks of business meetings.

EDIT 2: I am currently on my trip, and even though some contact information was outdated (e.g. address in the U.S.), at the airport (Pittsburgh) the process was really simple and was let through without any hassle.

I do confirm the issue about "working" vs. "doing business" as we shortly visited the Canadian side of Niagara Falls. On the way back, the officer asked us what we were doing in the U.S. and looked horrified at my colleague saying "working for an American Client". I saved the day, thanks to you guys, explaining that we were just there for business and our salaries were 100% from our company back in Germany.

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    It will depend on what you are being contracted to do. The default answer would be "no", but there are some activities which are permitted. Can you be more specific?
    – MJeffryes
    Commented May 16, 2019 at 12:11
  • I doubt this is actually a travel question and it maybe migrated to Expat Stack Exchange. But besides that, I assume there is no simple answer. Yet be careful with the difference between "work", "provide services" and "meet customers" if you know what I mean. If you tell immigration that you plan to "work short term" in the US on a VISA waiver, I am sure they will give you problems.
    – TorstenS
    Commented May 16, 2019 at 13:17
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    @TorstenS going to the US for a 4-week project would certainly be short-term travel, this is the right place for the question.
    – Chris H
    Commented May 16, 2019 at 13:27
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    What is the nature of the project, and what will the role of the three VWP-eligible visitors be? Depending on that, you may be able to use the VWP, you may be able to qualify for a B-1 "in lieu of H-1B," or you may be entirely forbidden from entering the US for this purpose.
    – phoog
    Commented May 16, 2019 at 14:08

2 Answers 2

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do we need specific visas to be employed by our European company but work short-term in the USA?

It depends...

The Visa waiver program allows citizens or nationals of participating countries (and Germany is one of the participating countries) to travel to the United States for business for stays of 90 days or less without obtaining a visa.

You will be allowed to conduct temporary business for the purposes allowed on a B-1 business visitor visa (without having to apply for that visa).

So far so good!

Official online resources such as this and this only show a few examples of what is allowed on a B-1 visa i.e. "consult with business associates" and "negotiate a contract" , Wikipedia lists a lot more examples but nowhere does it really explain exactly when conducting such temporary business becomes an unauthorized work activity which is no longer allowed under the visa waiver program and for which you will require a visa or (temporary) work permit...

Is the purpose of your business trip one of the commonly allowed business activities found in the examples above? Then you're good under the visa waiver program and you can give an honest answer to immigration officials that you're traveling for business without risking having your entry denied.

If you're intended business is not allowed under visa waiver program, then yes, you will need to apply for a visa.

After the OP's edit and comments:

The purpose of the trip is a risk assessment in the Client's plant, which amounts in layman terms to 4 weeks of business meetings.

That appears permissible under the visa waiver program.

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    "nowhere does it really explain exactly when...": That is because it's fairly subjective and there isn't a lot of case law reducing the fuzziness of the line. In other words, it's not possible to say "exactly when" in general. Matter of Hira established in the mid 1960s that a tailor in B-1 status can measure customers in the US for clothes that will be manufactured by his employer outside the US. But whether or when that applies to other fact patterns is not always straightforward.
    – phoog
    Commented May 16, 2019 at 16:13
  • As added in my edit, the purpose of the trip is a risk assessment in the Client's plant, which amounts in layman terms to 4 weeks of business meetings.
    – laureapresa
    Commented May 17, 2019 at 10:17
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Yes, you can!

What you will be looking for would be a B-1 in lieu of H-1B exception:

This exception applies to otherwise-qualified applicants who seek to enter the US to perform professional services. These would-be entrants are not allowed to receive remuneration from a US source (other than an expense allowance or reimbursement) and must be customarily employed by a non-US firm that will continue to pay their salary during the temporary assignment in the US. This provision is referred to as the ‘B-1 in lieu of H-1B’ exception, and is often used by consultants of all varieties who travel to the US to perform short-term professional services on behalf of their UK employers. Although in a May 13, 2011 letter to a US Senator the Department of State indicated that it plans to revoke or at least ‘substantially amend’ the regulation that establishes the B-1 in lieu of H-1B visa, for the time being the visa is still available.

You can find a longer discussion of the details on https://en.wikipedia.org/wiki/B_visa_in_lieu_of_other_visas#B-1_in_lieu_of_H-1B and lots of US immigration laywer websites.

Please note that qualified applicants means qualified for Visa Waiver as opposed to qualified to do their job. This is easy to misunderstand.

Note that it is extremely important that you will not get get paid by the US company but by your home company for the work you will be performing in the US.

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  • "Yes, you can!" They're asking if they can do this under the VWP. You're saying it's possible under the "B-1 in lieu of H-1B" exception, and the same page you've linked to says (under "inapplicability to VWP travel") "people entering via the VWP, without a visa, cannot engage in the additional activities permitted for the in lieu of visas. In other words, the VWP mostly substitutes for ordinary B visas, but cannot substitute for B visas in lieu of other visas. "
    – Chris H
    Commented May 16, 2019 at 13:31
  • I have taken this from: usvisalawyers.co.uk/article15.htm (updated the day before yesterday); page title: "Working (Legally) on a Visitor’s Visa or Visa Waiver Entry". Also read the 3rd paragraph of en.wikipedia.org/wiki/…. I think the words "poorly-classifiable exceptions such as persons performing professional services in the US for a non US employer, and persons installing, servicing and repairing commercial or industrial equipment or machinery pursuant to a contract of sale" is what this is about.
    – TorstenS
    Commented May 16, 2019 at 13:36
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    I can't follow what you're saying at all. You seem to be saying they can do this under the VWP because of the 'B-1 in lieu of H-1B' exception, and supporting this by linking to a page that doesn't mention the VWP in the section you're referring to (and is careful to do so elsewhere) along with a wikipedia page that says that the VWP stands in place of a B-1/2 visa for standard B-1/2 visa purposes but not for B-1 in lieu of other visas and has some vague language about poorly-classifiable exceptions which may or may not apply.
    – Chris H
    Commented May 16, 2019 at 14:02
  • The H1-B is a long-stay visa. I would guess an L Visa is more appropriate, assuming the B-1/B-2 is not enough.
    – Andrew Lazarus
    Commented May 16, 2019 at 22:57
  • As added in my edit, the purpose of the trip is a risk assessment in the Client's plant, which amounts in layman terms to 4 weeks of business meetings.
    – laureapresa
    Commented May 17, 2019 at 10:17

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