What is an ESTA visa?

An ESTA visa is a program of the United States which allows citizens of 38 countries which have been deemed to have high-income economies and engage in a high level of screening for criminal and terrorist activity to travel to the United States for tourism and to engage in certain business activities for up to 90 days without having to attend a US consular interview to obtain a visa. Those who travel to the US on the ESTA visa waive their right to extend their visit in the US, change to another visa status, or contest removal from the US in court.

What activities are permitted on an ESTA visa?

A. The ESTA visa is not intended for the purpose of obtaining or engaging in employment while in the United States, however it can be quite difficult to distinguish between appropriate business activities and activities that constitute skilled or unskilled labor. Matter of Hira, which is a decision from the Board of Immigration Appeals provides the clearest guidance. In Matter of Hira, the court determined that the principal place of business and accrual of profits is an important factor in determining whether certain business activities are appropriate. Generally, the following activities are expressly authorized:

• Commercial transactions, for example a merchant who takes orders for goods manufactured abroad
• Negotiating contracts
• Consulting with business associates
• Serving on a board of directors

B. If your activities in the US extend beyond these functions, such as expanding or developing a company in the United States, then you will need to speak with an experienced US immigration attorney to find an appropriate employment vias.

Let’s say I’m a startup founder and I’ve been accepted into an accelerator program. Is the ESTA visa a good visa for me to attend the accelerator program with?

Generally, no for a number of reasons. First, we’ve found that a lot of founders have issues at the border entering the United States when they are asked the reason for travel to the US. Many of the border agents do not know what an accelerator program is. Most people don’t even know what an accelerator program is. As such, we’ve seen a lot of founders be pulled into secondary inspection because the border agent has no idea what an accelerator program is, and when they hear that the person is here for their business, they suspect that the person is here to work. As such, its very important to either have all the information about the program you are participating in on hand and ready to present to the immigration officer, or simply say that you are here to attend a training program. The best possible option is to find a more flexible visa for you as a founder to travel to the United States that affords you the flexibility to enter and exit as you please, and gives you the ability to work on your business as well, such as the H1B, E-2, L1 or O1 visas.

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