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One of my engineers was recently stopped and questioned by immigration in Newark and told if he returns under an ESTA he would be refused entry and probably returned to the UK. He has entered the US frequently over the last 5 years (2-3 weeks each visit then returning to UK for 2-3 weeks) under ESTA/VWP. He is based in the UK, paid in the UK in £ and lives from a UK company credit card when in the USA. I don't want him to return until we have the right paperwork in place. I was told by an immigration lawyer to seek an E1 visa but this is time consuming and costly. I have since read we should be able to continue using ESTA. He has 19 years experience we can't replace by recruiting in the US. His role is a technical service engineer "working" on our specialised equipment. Any help is greatly appreciated.

Mark S

  • Where did you read that you should be able to continue using the VWP? What is it about your engineer's duties in the US that leads you to conclude that he should be able to qualify as a business visitor? – phoog Apr 17 at 17:34
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You can either

  • Follow your lawyer's advice and apply for an E-1 visa, or
  • Try to find another lawyer who will give you different advice.

Proceeding with the VWP on the basis of advice from internet strangers is ill advised.

Whether your engineer can qualify as a business visitor depends on a subtle determination of the nature of his work in the US. There is a lot of gray area between things that are clearly allowed on a B-1 visa (or the VWP) and things that are not. A good immigration lawyer will be familiar with relevant case law, especially cases heard in the immigration courts, and be able to evaluate the specifics of your case in light of these precedents.

If your engineer continues using the VWP and is refused entry at some point, it will be seriously problematic for him. He will probably never be able to use the VWP again, and having tried to do so after being told not to could well make it difficult for him to get a B (visitor) visa.

Refusal of entry under the VWP cannot be reviewed or appealed; the only recourse is to apply for a B visa. If the embassy refuses to grant a B visa, or the CBP immigration inspector refuses to admit him in B status, you'll be spending even more in legal fees, and he will have a negative immigration record to worry about. So a good immigration lawyer will probably advise borderline cases to go for the E visa, because you would probably rather do that than litigate a test case in the immigration courts.

Still, without knowing the facts of your case, nobody can tell you how likely it is that you'll find a lawyer who thinks that your engineer clearly qualifies as a business visitor. If you can, the lawyer should be able to help explain the best way for your engineer to present himself at the border to make his eligibility for that status clear to the immigration officer.

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