Advice needed on international project day rate

[jamesbrown]

This is what my clients legal/HR team came back with:

“The answer I received is that ESTA is fine, as this is a global project (not a US project) with some of the activities and meetings located in the US (other activities in EMEA and APAC). The “value-add work” freelancers and international staff will provide will be to the benefit of our global business, not our US business. A US worker would not be able to fill the same role, because they don’t have an understanding of international markets and consumer insights.

The contract and payments would be issued by our Europe business. To make it very clear that the project is an extension of the previous work you did with us in London, we could extend your earlier contract with an addendum that specifies the importance of contributing international insights and that some of the activities will have be carried out in New York.

Oh dear. There's a lot wrong with that, but the sirens go off with this:

A US worker would not be able to fill the same role

Why would they even mention that w/r to the visa waiver, as it's completely irrelevant?

I'm not surprised they came back with this (as we both speculated before), because there's no risk for them (it's all on you), but it's straightforwardly false. The "activities" you have described in this thread amount to productive work, no question. Whether it is done for an "international" project is completely irrelevant.

[BlasterBates]

Under ESTA you can

Install, service, or repair commercial or industrial equipment or machinery purchased from a company outside the United States or training U.S. workers to perform such services (but only under specific circumstances)

The question is whether Software is counted under this category. In our company we would send out Engineers to update Software. A computer is a piece of commercial equipment.

It's up to you

[BlasterBates]

If you are inclined to accept and think it probably is OK but want to avoid being incarcerated, you can present documents at the port of entry.

B-1 Business Visitors and Visa Waiver Business Visitors

If I plan to enter under the Visa Waiver program may I work under the rules of the B-1 in lieu of H-1B?

Yes, it is permissible to enter for 90 days as a Visa Waiver business visitor qualifying for B-1 in lieu or H. The applicant would be required to bring a detailed letter and documentation to establish eligibility for this classification to present to the inspecting officer at the Port of Entry. If eligibility for this classification is not clear, then applying for the B-1 in lieu of H visa is advisable.

[jamesbrown]

Under ESTA you can



The question is whether Software is counted under this category. In our company we would send out Engineers to update Software. A computer is a piece of commercial equipment.

It's up to you

There are a couple of things that have escaped you.

First, the OP isn’t going out to service equipment or install software necessary to make that equipment work or conduct training for equipment purchased from a UK company. They are going out to do “productive work”, which is expressly disallowed. To me, it sounded like development work in a small team.

Second, USCIS shoot first and ask questions later. If the OP is regularly travelling to the US, they will get pulled up, and it will sound like productive work to them, and they will shoot first (and ask questions later). It is extremely wise to take a conservative approach and it is extremely foolish to not take a conservative approach.

The advice from the client’s legal team reads more like a sales pitch. Be very afraid

[jamesbrown]

If you are inclined to accept and think it probably is OK but want to avoid being incarcerated, you can present documents at the port of entry.

B-1 Business Visitors and Visa Waiver Business Visitors

As I've said before, Google is not your friend here. I know this is a general contractors forum, so the OP should be taking all of our advice at-risk, but your advice is essentially dangerous.

The OP would almost certainly not qualify for a B1-in-lieu, and the UK company is not offering this anyway. But let's entertain the possibility that they would, and that the UK company would support that application. I think you've complete misunderstood that link. The problem with the B1-in-lieu is that the USCIS folks will often misunderstand it to be an ordinary B1, so you need to bring the full documentation that supports the B1-in-lieu application to the port of entry, including from the Consulate or Embassy that granted the B1-in-lieu. The USCIS at the port of entry always has the final say on absolutely everything and they can completely reject your application, no matter that it comes from a US Consulate or Embassy. The B1-in-lieu application requires a ton of documentation, including the contracts, degree certificates to demonstrate H-1B level work, payroll info. etc. You need to take that stuff with you.

You can't just turn up and hope for the best

[BlasterBates]

As I've said before, Google is not your friend here. I know this is a general contractors forum, so the OP should be taking all of our advice at-risk, but your advice is essentially dangerous.

The OP would almost certainly not qualify for a B1-in-lieu, and the UK company is not offering this anyway. But let's entertain the possibility that they would, *and that the UK company would support it*. I think you've complete misunderstood that link. The problem with the B1-in-lieu is that the USCIS folks will often misunderstand it to be an ordinary B1, so you need to bring the full documentation that supports the B1-in-lieu application to the port of entry, including from the Consulate that granted the B1-in-lieu. The USCIS at the port of entry always has the final say on absolutely everything and they can completely reject your application, no matter that it comes from a US Consulate or Embassy. The B1-in-lieu application requires a ton of documentation, including the contracts, degree certificates to demonstrate H-1B level work, payroll info. etc. You need to take that stuff with you.

You can't just turn up and hope for the best

You don't know that, you're not a lawyer. He should take advice from an expert and not someone who successfully filled out an H1B form.

It isn't dangerous to apply for a B1 in lieu nor is it dangerous to see an official on your first visit. What a load of nonsense.

[jamesbrown]

You don't know that, you're not a lawyer. He should take advice from an expert and not someone who successfully filled out an H1B form.

It isn't dangerous to apply for a B1 in lieu nor is it dangerous to see an official on your first visit. What a load of nonsense.

You're completely out of your depth. You were suggesting that they turned up at the port of entry and applied for a B1-in-lieu, FFS. All you're offering the OP is Google and a deep misunderstanding.

[BlasterBates]

You're completely out of your depth. You were suggesting that they turned up at the port of entry and applied for a B1-in-lieu, FFS. All you're offering the OP is Google and a deep misunderstanding.

You are the one out of your depth.

jamesbrown has a tendency to mix facts with rubbish. It needs to be challenged.

[jamesbrown]

You are the one out of your depth.

jamesbrown has a tendency to mix facts with rubbish. It needs to be challenged.

Meh, whatever. OP can decide for themselves.

So, OP, what are you going to do?

[BlasterBates]

Meh, whatever. OP can decide for themselves.

So, OP, what are you going to do?

Indeed, and I find it interesting that the company's legal dept agreed with me and are prepared to hand him documentation to that effect.

I'm not saying it's right, but it is interesting nevertheless.