Attending a comic-con on a tourist visa or ESTA is a relatively low-risk endeavor for a fan with a hotel room who is just going to enjoy the experience. So long as you limit your activity to seeing panels and buying stuff, you are doing little to attract unwanted attention from border patrol or ICE agents.
However, the risk of detention or removal increases if immigration enforcement suspects that a non-U.S. comic-con attendee might be coming here to make money. For a leisure traveler, this can end a long-planned trip in an instant. Having a business purpose can make certain types of money-earning activity permissible, but what you do and how you describe it can determine whether you get to stay.
In this post and the next, we’ll look at a range of scenarios typically encountered in comic-cons and their potential consequences for a traveler on a tourist or business visa or here through the Visa Waiver Program and ESTA. We’ll start with the general principles that guide immigration agents in their decision making, after which we’ll cover specific aspects of attending the convention. This part of the series will conclude with strategic considerations for the admission process at the border or airport.
Risks, Rights, and Wrongs
One important aspect of assessing one’s plans for attending a comic-con in a different country is understanding that it involves more than determining what is right or wrong under the law. Sometimes the law is ambiguous; conversely, the law might be clear, but agents might choose not to enforce it. Moreover, there might a situation in which the activities in question are not expressly covered in the regulations and guidelines with which most agents are familiar; it’s even possible to encounter agents who more or less understand the general principles of tourist and business visas but get the details wrong in ways that lead them to detain a traveler for engaging in legal activity.
All of these are factors why the explanations that follow do not simply state what is right and what is wrong. In the immortal words of the late Supreme Court Justice Oliver Wendell Holmes, Jr., law is an art of prediction – we’ll look at the rules and the risks.
Is there a First Amendment exemption for creative work?
If you’ve been following the the CBLDF’s work or recent cases challenging attempts to deport protestors, you might be wondering if the First Amendment offers any protection for money-earning activity at conventions that involves expressive works, such as selling one’s own original art, commissions, or comics.
That some form of protection exists for the creation and sale of creative material exists would not be an unreasonable assumption. After all, ICE stands for both Immigration and Customs Enforcement, and as we saw in our discussion of import tariffs, the government has enacted key exemptions for books and other expressive media expressly in order to keep the taxes on items at entry from curbing the free circulation of ideas. The International Emergency Economic Powers Act and other sanctions-related laws likewise include informational material exemptions based on the First Amendment that exclude graphic novels, manga, animé, and other comic-art material from punitive tariffs and import bans. In addition, outside the visa context, early in its history the CBLDF successfully persuaded the California government that the transfer of original comic art to a publisher should not be subject to the state’s sales tax, since comic art is an expression of ideas.
Unfortunately, federal law has separate rules for creators and the things they create. Although tariffs and sanctions law establishes First Amendment exemptions for informational material, immigration law does not include an analogous exemption giving creators on B visas or ESTA a protected right to sell their comics, artwork, or other expressive material while in the U.S. The Supreme Court on multiple occasions – including First Amendment cases – has ruled that Congress has the authority to set the rules governing which non-resident travelers from outside the U.S. may enter and remain in the country. The government’s authority over admitting non-citizens to the U.S. includes the right to enact an immigration statute that prioritizes protecting the economic interests of U.S. citizens over than a temporary traveler’s creative expression.
What this means from a practical perspective is that from the perspective of an immigration enforcement officer, the focus of inclusion or exclusion with regard to visas is not whether the individual’s creative work is wholly exempt from regulation on First Amendment grounds, but which visa category is appropriate for a traveler’s evident activities.
The training material for consular staff reviewing visa applications, volume 9 of the State Department’s Foreign Affairs Manual, illustrates this point of view. For example, when assessing an artist’s visa application, the staffer will look past the nature of the art to determine whether the artist is employed by a U.S. employer or planning “to regularly sell” artwork here. If so, consular staff would typically deny the artist a B-1 visa but could consider whether the applicant is qualified for H, I, J, O, or P visa status. Should none of those categories apply, the artist would have to be categorized as an immigrant, subject to admission quotas and other strict qualifying rules.
Business-purpose boundaries
Visa law’s focus on categorization rather than exemption makes it imperative to understand the parameters of business activity permitted under a B-1 visa or ESTA travel with a business purpose.
As noted previously, having a business visa does not give the B-1 visa holder the right to sell product that they have brought into the country or plan to make here, nor does it allow the holder to work for U.S. company or to make money by performing freelance work. Instead, the B-1 visa “entails business activities other than the performance of skilled or unskilled labor.” What this means can at times be difficult to discern, but the main boundary that the State Department has established is that a B-1 visa holder’s business must consist of “intercourse of a commercial character” – that is, business-related communication and interaction rather than paid U.S. work or direct sales – in which the “principal place of business and the actual place of eventual accrual profits, at least predominantly, remains in the foreign country.”
What does this mean for comics creators and others traveling to the U.S. to further their comics careers or commercial ventures? First and foremost, it provides a clear basis for the right of international comics professionals to attend comic-cons and other industry conventions. According to the Foreign Affairs Manual used to train immigration agents, participating in “educational, professional, or business conventions, conferences, or seminars” is one of the leading examples of activity permitted under a B-1 visa and ESTA business travel.
At a convention, the same FAM section notes, an international traveler at a U.S. comic-con for business purposes can participate in business activity that “does not involve gainful employment in the United States.” A paradigmatic example of this is that of “a merchant who takes orders for goods manufactured abroad,” as when a foreign publisher promotes comics created and printed outside the U.S. Between simply attending a convention and taking orders for work created elsewhere, there is a range of permitted business activity that should not result in deportation so long as it does not include U.S. employment or direct consumer sales. Negotiating contracts, interacting with other professionals and fans, conducting research for a book, uncompensated participation in a panel, exhibitor booth, award show, or promotional event – these are all typical comic-con experiences consistent with what immigration agents are trained to allow.
We’ll take a closer look at commissioned work, promotional appearances, autograph signings, booth work, production assistance, cosplay contests, volunteering, and other comic-con activity in the next couple posts, but before we go into such granular detail, there is one remaining limit on free expression that has become a focal point in recent enforcement.
Free speech and comics journalism
Besides limiting the sale of expressive works, U.S. law also enables government officials to keep non-citizens out of the country for
- Planning or engaging in illegal activity,
- Endorsing or espousing terrorist activity (8 U.S.C. § 1182(a)(3)(B)), or
- Being someone whose entry or proposed activities the Secretary of State believes would have serious adverse foreign policy consequences for the U.S. (8 U.S.C § 1182(a)(3)(C)).
These provisions might at first glance seem unlikely to be a concern for the comics community, at least in the U.S. Traditionally, the focus of immigration enforcement with regard to any kind of reporting has been whether a journalist is being paid for their work here in the U.S., whether by a domestic or foreign organization; if so, a journalist planning to cover panels and other comic-con events would technically not be eligible for either a B visa or ESTA, but would instead be directed to apply for the I visa for foreign media representatives. To the extent there was a pressing strategic question, it was whether paid influencers could qualify for an I visa under the rules’ longstanding requirement of employment by a media company, an issue that is been more or less being addressed by recent updates pertaining to new media.
Since January, though, the new administration’s heightened enforcement directed towards political protest, support for Palestine, and other causes has created substantial risks for the creators of journalistic graphic novels and other work critical of current foreign policy could be at risk. Even if they are not being paid to report on the happenings at a convention, they could still be barred or removed from the U.S. based on the content of their work. This does not appear to have happened so far this year, but given other attempted removals and travel bans, it has become a serious concern.
Next: A closer look at specific situations at comic-cons and on arrival
Web posts aren’t a place for offering legal advice, so please consult an attorney for personally tailored assistance on visas and waivers for U.S. travel. I’ll be providing some resources for locating an immigration attorney in a future article.