It’s a familiar story: a client, colleague, or family member comes back from a consulate interview or U.S. border crossing frustrated, scoffing as they recount their experience.
“Why did they ask me that? They already know the answer! Why ask, and in such a confusing way?”

Is such an approach a feature or a bug of the immigration system? The truth is, it’s a bit of both. Some of it comes down to human error, and some of it is deliberate. Either way, the stakes are high. For anyone applying for a visitor visa (B1/B2) or traveling on ESTA, every answer matters. That’s why it’s crucial to be careful, deliberate, and—when necessary—ask clarifying questions before responding: “Do you mean working now in the U.S., or continuing my career abroad?”

At a time of shifting policies and heightened enforcement, understanding the fine line between what is permitted and what is prohibited is more important than ever.

What You Can and Cannot Do on a B1/B2 or ESTA

🚫 Clearly Not Allowed

• Being paid a salary for work performed in the U.S.
• Performing productive labor
• Actively managing a business on the ground
  

✅ Clearly Allowed

• Scoping out business or investment opportunities
• Negotiating contracts
• Consulting with business associates
• Participating in litigation
• Attending scientific, educational, professional, or business conventions, conferences, or seminars
• Undertaking independent research
  

🚧 Gray Areas (Proceed with Caution)

• Training / Being Trained: Allowed in narrow circumstances, but the skills must not be implemented as part of gainful employment.
• Installation or Technical Work: Permitted if part of a contract for equipment purchased from a foreign company, and only if the worker has unique knowledge essential to fulfilling the contract. Payment cannot come from a U.S. source. Construction work, however, is not permitted—except for supervising or training others.
  
  

(The list above is only a small sample of activities in each category. See: 9 FAM 402.2-5(E)(1) for the full regulatory language.)

Raid First, Clarity Later

Interestingly, and perhaps unexpectedly, all of this came to a head with the recent ICE raid on a Hyundai-LG battery plant in Georgia in early September that resulted in the arrest of nearly 500 people. While our firm is not involved in the case and has no inside information (surely the truth will emerge given that attorney Charles Kuck is representing some of the workers), it appears many of those arrested were engaged in activities arguably consistent with the scope of B1/B2 or ESTA. Despite that, they were detained and are awaiting charter flights home (mostly to South Korea).

It’s too soon to know whether enforcement will continue to run rampant or if this is a one-off episode. Either way, non-US nationals coming to the US can hopefully avoid unpleasant encounters by being informed and being prepared.

The Takeaway

• While rules exist, interpretation at consulates or borders can vary.
• Enforcement can sometimes feel arbitrary and is changing by the day.
• Preparation and clarity in how non-nationals present themselves are key.
  
  

If you are traveling to the U.S. on a visitor visa or ESTA, know the boundaries, plan carefully, and when in doubt—get advice before you go.