How To Avoid Problems While Visiting the U.S.
to Explore and Set Up Your U.S. Investment

A common mistake that a foreign (non-US citizen) entrepreneur or investor makes is failing to properly use the visitor visa category.   Each time a foreign national enters the U.S., a U.S. Customs and Border Protection (USCBP) Officer will inspect the traveler to ensure he or she meets the requirements for entry as a business visitor. 

Citizens of countries that have a very high record of historical compliance with the U.S. immigration law do not need to apply for a B-1 (business visitor) visa in order to present themselves for U.S. entry on a business trip.  Instead, they can visit the U.S. government’s ESTA registration website and may qualify for an ESTA registration that allows them visa-free entry under the Visa Waiver Program without a B-1 (business visitor) visa.  Such registration, valid for up to two years, enables an investor to come to the U.S. provided he or she can demonstrate to USCBP satisfaction of the following four requirements:

(1) the investor works at a job outside the U.S.;

(2) the investor receives income only from the foreign employer or source;

(3) the investor is only coming to the U.S. temporarily (e.g. making a business trip); and

(4) the investor is only going to enable in “permissible activities” that fit within the business visitor category.

Permissible activities generally involve attending business meetings, attending conferences, or meeting with U.S. customers of the foreign country.  Taking initial steps to set up your U.S. investment or create a U.S. business can qualify as a permissible activity such as meeting with U.S. company officials that are looking to sell their business, meeting with attorneys or accountants about forming a business, or looking to lease or buy a facility for the new business. It can be a muddy area in terms of what constitutes a permissible activity and what violates use of the B-1 visa category or Visa Waiver program.  The general concept of what an investor can do is encapsulated in the following excerpt from the U.S. Department of State (DOS)’s Foreign Affairs Manual: 

9 FAM 402.2-5(C)(7)  (U) Investor Seeking Investment in United States (U) An alien seeking investment in the United States, including an investment that would qualify him or her for status as an E-2 nonimmigrant investor, is not ineligible for a B visa on that basis alone.  Similarly, an alien pursuing EB-5 immigrant visa may be issued a B visa to examine or monitor potential qualifying investments as long as the applicant otherwise establishes qualification for a B visa, including that they do not intend to enter the United States to pursue adjustment of status. Applicants seeking investment, like all B-1/B-2 travelers, are precluded from performing productive labor or from actively participating in the management of the business while in the United States in B status.

What investors want to avoid is being denied U.S. entry and having their B-1 visas or ESTA registration canceled due to USCBP determining that their planned business trip does not fit the business visitor rules, or, worse yet, get charged with immigration fraud and be designated as permanently ineligible for a U.S. visa.  We can help you to proactively take steps to plan your U.S. trips to greatly reduce the risk of such serious problems maximize the odds that your activities are determined by USCBP to qualify and also to gather and bring evidence in your carry-on bag that will increase your odds of being admitted if USCBP challenges you in secondary inspection at the airport.