Using ESTA to Visit the U.S., or Should You Get a Visa?
What is “ESTA”?
All people using the Visa Waiver Program (VWP) to enter the U.S. as visitors must pre-register with the U.S. Department of Homeland Security at the Electronic System for Travel Authorization web site (ESTA). This is a special program available only to citizens of certain countries. Years ago the State Department, which is in charge of the U.S. Consulates abroad, decided that it was very expensive to continue to host numerous Consular officers in mostly western European countries where the cost of living was relatively high. And it occurred to them that all these officers were mostly doing was rubber-stamping a high percentage of all applications for visitor or tourist, B-1/B-2, visas because people from those countries did not have a pattern and practice of violating U.S. immigration laws and thus their applications were largely approvable. So, it petitioned Congress to enact this provision in the law that allows people who are citizens of certain countries to simply get on a plane bound for the U.S. without having the hassle of going to a U.S. Consulate and seeking a visitor visa. It waived the visa requirement. However, in exchange for that privilege, those people are restricted to a 90 days stay in the U.S. with no extensions or changes to that status permitted. This is both a good deal and a bad deal. If you bother to get an actual visa, that is if the Consul will condescend to give you one now that you don’t technically need one, then you can be admitted to the U.S. for 6 months instead of 3 months, and you have some flexibility to ask for an extension of that time if your plans change or to seek a change to some other visa status classification, such as if you decide that you want to make a business investment or someone offers you a wonderful employment opportunity that you’d rather not pass up.
What is a Visitor Visa?
The “B” visas are the visas that are “waived” by the Visa Waiver Program or ESTA. They are what we commonly call tourist or visitor visas. They come in 2 flavors: B-1, visitor for business and B-2, visitor for pleasure. For many people throughout the world, they are sometimes the hardest visas to get because the U.S. Consul can deny these visas based on a “reason to believe” that the applicant has an “immigrant intent.” This means that you have no true intention to simply come to the U.S. for a temporary visit but really intend to come and stay and live in the U.S. There is no appeal from a denial of a visa. Many people make the mistake of telling the Consul that you love the United States and that you want to live there, that you have good friends or family there that will take care of you and that you want to become an American citizen. Wrong. Many times the fewer connections you have to the U.S. the better. The Consul weighs your possibilities of disappearing into the crowd in the U.S. and working illegally or staying past the permission given to you vs. the life you have to return to in your home country. The stronger your ties to home; the better your chances of getting the visitor visa.
For those who would normally use ESTA but would prefer to stay longer than 90 days, coming to the U.S. to purchase a vacation property and then to refurbish that holiday home and use it over the years, is perfectly acceptable as a reason to ask for the visitor visa. Typically, it would be readily given unless you have school-age children. Children are not supposed to be going to school as “visitors.”
There is an entire range of permissible activities for visitors for business. The visa is usually given as the combination B-1/B-2 visa and how you are admitted to the U.S. will largely depend of what you tell the officer at the airport or the border crossing. For example, you can come to the U.S. to negotiate contracts, meet with doctors or lawyers, attend business meetings or conferences, go to court, compete in athletic tournaments, engage in training or missionary services, repair equipment bought abroad, or look for suitable investments. What you cannot do, with very few exceptions, is simply work. In many instances, there is a fine line between business and employment so check this out before you decide to simply use the B-1 visa to engage in business activities.
How Long Can You Stay in The U.S. as a VISITOR?
Whether you use a visitor visa to enter the U.S. or simply come with ESTA, each time you enter the US you will be admitted for a set period of time: using the ESTA it is 90 days only; using the B visa it is 180 days and can be extended prior to expiration. People are often confused, and rightly so, about just how long they are permitted to remain in the US each year. First, there is no hard and fast rule, which is, of course, why it is so confusing. This is what you need to keep in mind: every time you seek to come into the US. You must convince the immigration officer that you are indeed just visiting and intend to depart at the end of that visit. The officer will consider your pattern and practice of travel in and out of the US over the last number of years. If it appears, on balance, that you are spending more time inside the US than outside the US, you will most likely be advised that this is improper for a visitor. However, there is no specific rule that allows a visitor to remain in the U.S. only for 180 days in a calendar year. This is a tax issue. If you are physically in the US for ½ the calendar year (that would be 183 days from January through December) then you may find yourself subject to US income tax on your worldwide income. Nevertheless, many immigration officers misuse this rule as a bright line test to determine whether a visitor’s behavior is consistent with “visiting” the US- just further adding to the confusion. In general, if you will be coming to the US as a visitor over several years, it is a good policy to maintain a balance between your time in the US and out of the US and bring sufficient paperwork with you to show the immigration authorities that you have sufficient funds available to support yourself while you are in the US without working and have a home outside the US to which you intend to return.