USA personnel deployment as part of after-sales projects

The greatest difficulty was and often still is the proof of after-sales contracts vis-à-vis the US authorities - be it when applying at the consulate, when entering the country or even during an on-site inspection by ICE.

Large-scale international projects in particular complex (global) contract chains within group structures does not represent a significant risk:

It is often difficult for US border, ICE or consular personnel to fully understand these constructs in the short review situation. The less clear and comprehensible the after-sales contracts, the more contracting parties are involved, the higher the probability that the authorities will refer to the application for or necessity of regular US work visas. This is within the decision-making authority of the responsible officials.

So that your employees can continue to legally compliant and smooth can enter the USA, we recommend

1. Checking the deployment constellation:
   Make sure in advance whether your project meets the requirements for an after-sales assignment or whether regular work visas are required. Weigh up the (potential) risks carefully, which can lead to problems with extensive contractual constellations and multiple contracting parties, as described above.
2. Careful documentation:
   Cover letter from the foreign employer with a clear description of the assignment and a brief explanation of the after-sales constellation, possibly an additional letter of invitation from the USA (from the US customer), which should not contain the wording "work", but should explicitly refer to the exclusive after-sales services. These letters should be carefully reviewed, including contract documents (in full or in relevant excerpts) that specify the after-sales services. Sensitive information may be redacted, but it must clearly identify the parties to the contract, the product sold and the after-sales services included in the sale. Feel free to work with markings.
3. Preparation of the travelers:
   A detailed briefing on the purpose of the assignment and the permitted activities is essential. Staff must be informed about the individual access requirements for after-sales activities in order to avoid misunderstandings with the US authorities. Training on how to respond confidently to queries from border or consular staff or during on-site inspections.

In the case of complex contract structures or long-term personnel assignments, proof of an after-sales contract is often not sufficient. The more difficult it is for the US authorities to trace the contractual chain, the greater the risk that officials will refer to the need to apply for or obtain regular US work visas.

Full legal protection for the deployment of personnel can only be achieved by applying for classic work visas can be achieved. These include, for example E-1/E-2 investor visas or L-1- resp. L-Blanket visas.

These create planning security, as employees with a valid work visa can start their assignment in the USA regardless of the interpretation of the after-sales rules.

However, there is one important restriction:

Only US companies are eligible to apply for US work visas. Only an American location can act as the official petitioner for the respective beneficiary (employee). Foreign companies without a US branch are therefore unable to apply for a work visa for their staff themselves.

For companies without a US presence, this means that after-sales operations will continue to be covered by the B-1/ESTA regulations This is subject to proper contract drafting and careful preparation. Companies with a US location, on the other hand, can create additional planning security and protection against short-term entry problems or on-site inspections by applying for work visas.

Even if the public reporting on stricter immigration law conditions is understandably causing concern among many companies, the following applies:

• The legal basis for after-sales operations with B-1/ESTA remains unchanged.
• Problems usually arise due to inadequate documentation or a lack of preparation on the part of travelers.

With clear contracts, careful preparation and professional support, most personnel assignments can continue to be implemented successfully and with legal certainty.
If your company regularly sends specialist personnel to the USA, we will be happy to support you with the assessment, application and preparation - so that your project team can continue to work without unnecessary hurdles in the future.