Why was my colleague refused a US B1 visa?

To put it bluntly, whoever told your colleague not to go visa-free was a bloody idiot, and sadly your colleague got to pay for it.

Us Swedes can enter visa-free for the very same purposes that are covered by B visas, full stop!

I just spoke to the CBP supervisor at JFK Airport, who said that, provided the source of income is located in Sweden, you can enter visa-free or on a B1 visa. Otherwise an H visa is required.

You say the visa officer gave you an explanation not consistent with the one in the refusal letter. In this case the letter is the “correct” version. Section 214(b) is triggered when the applicant hasn’t been able to adequately demonstrate his/her ties to their country of residence; as such the intended activity is not relevant for this.

He answered that her doing work for the US subsidiary made her not applicable for the B1 visa

He probably assumed her source of income would be US-based, in which case she would need an H (not B) visa.

If I were your colleague, I would contact the CBP via this form, submit the ESTA application number and passport number, and explain the situation in detail, uploading the refusal letter from the embassy as well as anything your employer has told you in writing regarding this matter. There is a small chance the CBP may revoke her VWP ineligibility.

If this does not happen, then sadly she simply has to apply for a new B1 visa, and will not be able to enter the US visa-free ever again.

(to be precise, in theory it is possible if a new ESTA is approved; however you wrote yourself one was denied, and as stated by the CBP:

If you were previously denied a visa, or previously refused entry to the United States, or previously removed from the U.S. your ESTA application will most likely be denied.

)

Section 214(b) is part of the Immigration and Nationality Act (INA) states :

Every alien shall be presumed to be an immigrant until he establishes
to the satisfaction of the consular officer, at the time of
application for admission, that he is entitled to a nonimmigrant
status…

So officially the issue is that the consular staff were not convinced that your colleague was not planning to remain in the US. Note that this is NOT related to the type of work they were planning to do and whether or not it was relevant.

At the end of the day, the issue here is likely that you received bad advice – you colleague should never have attempted to apply for a visa at all.

For several years, the US has been very strict in giving B1/B2 visas to people from Visa Waiver countries. The Visa Waiver Program allows you to visit the US and remain for up to 3 months per stay, with (other than the maximum stay requirements) almost exactly the same conditions as a B1/B2 visa. The type of work you are allowed do when visiting under the VWP is exactly the same as that you can do when holding a B1/B2 visa.

In the eyes of the consulate staff, the fact your colleague is applying for a visa when they have access to the VWP is suspicious. At best it implies they are planning to stay for more than 3 months at a time – whilst at the same time likely saying that they are not. It is enough to make them doubt the authenticity of the application, and thus whether the person actually has non-immigration intent as is required – and thus the refusal under 214(B).

Unfortunately this mistake leaves your colleague in a bad position. Historically they would not have been able to use the VWP program any more now that they have a failed visa application, however that has now changed and they are now allow apply for an (new) ESTA and if that is approved then they CAN use the VWP program in future. (If they hold an existing ESTA it is now invalid – they must re-apply). This is really their only forward course of action – apply for a new ESTA, and hope that it is approved. If it is not, they can try again in ~6 months, and so on.

Realistically there is likely no other visa type they can apply for – B1 (or the equivalent “WB” status under the Visa Waiver Program) is almost certainly the correct type. (The exact details may depend on how the actual contract/etc are written, but that’s something only an immigration lawyer would be able to confirm).