This post builds on our previous analysis of the fundamental principles of the visa system with a more detailed examination of how border patrol and ICE officials could perceive specific comic-con activities. Since the tourism visa and ESTA travel for leisure purposes generally prohibit remunerated activity, the B-1 visa and ESTA travel expressly for business purposes will be our primary focus here – other visa categories will be the topic of next post. That said, this post will also discuss how such things as volunteering, prize contests, paid expenses, and the appearance of engaging in professional creative work could affect B-2 and ESTA tourist status. In addition, we will take a closer look at how anti-terror and policy-compliance rules could have an impact on leisure and business travelers alike.
Core reference points
Visa rules are in their entirety complex and opaque, a situation exacerbated by the fact that many internal documents on which enforcement officials base their decisions remain inaccessible absent a court order. This creates problems not just for an international traveler who wants to go to a U.S. comic-con on business or a U.S. company that wants to connect with such a traveler, but for the border patrol and ICE agents who have to implement these rules. Agents make mistakes, especially when they are being told to intensify their efforts to enforce laws they may not fully comprehend.
In addition to consulting with experienced immigration counsel, referring to the core principles governing B-1 visas and ESTA business travel can be an effective means of cutting through the morass and countering overreach. As the Board of Immigration Appeals noted in its landmark 1966 ruling In the Matter of Hira, permissible travel for a business purpose under a B-1 visa (or ESTA) extended to interactions of “a commercial character,” not to engage in compensated labor in competition with U.S. citizens. The two most significant considerations in this regard are whether
- the principal place of business and the actual place of eventual accrual of profits, at least predominantly, remains in the foreign country;
- there is a clear intent on the part of traveler is to continue their foreign residence and not to abandon their existing domicile.
Application and arrival
To what extent does the application of these principles affect the First Amendment’s protection for non-citizens’ freedom of speech and of the press when traveling to the U.S.? This has been the subject of multiple court cases and countless law journal articles, so much so that we could write a book of posts on this question alone.
Wherever the courts land ultimately land on various challenges to the Trump administration’s expansive scrutiny of visa applicants and arriving travelers, the reality facing non-U.S. citizen who plans to travel to the U.S on a B visa or ESTA is that anything they’ve said and anything in their possession upon arrival might be used to deny entry if consular or border patrol officers consider it to be a visa rule violation, a national threat to the country, or “hateful ideology.” Everything has the potential to be evidence:
- The administration has already intensified efforts to review visa applicants’ social media posts when processing their visa applications, and it’s all but certain that a creator’s or company’s published work could be reviewed as well.
- On arrival, the contents of travelers’ digital devices – phone, computers, tablets, etc. – can be the subject of scrutiny as well, along with whatever else travelers have in possession at their arrival, where they plan to stay while in the U.S., and their financial resources for paying for both their stay and their departure travel to a foreign country.
This makes it important to recognize how a government official might perceive what you’ve said or possess in relation to visitor visa rules and public policy. For example, a social media post in which a creator discusses completing commissions or selling items at a U.S. convention could lead to a visa denial, or at least a more rigorous review. Similarly, if a visa holder does not have hotel rooms booked or evident financial resources to afford their stay or return trip, border patrol officers could conclude that they will likely earn money while in the U.S. to pay for their trip or have no intention to leave.
It’s also possible – not inevitable, but possible – that publishing a comic or graphic novel critical of U.S. foreign policy could now cause problems for the application or arrival. The same goes for interviewing or associating with people that the current administration considers to be terrorists or otherwise adverse to U.S. interests. Needless to say, if the content of one’s work or the process of creating a comic seems to be a factor in being denied a visa or entry, we’ll do what we can to help.
Professional networking
As indicated in the previous post, the rules governing the B-1 business visa and ESTA travel for business purposes treat professional networking as the paradigm of permitted activity. Attending conferences, meeting colleagues, negotiating contracts, conducting market research, – so long as a U.S. company is not compensating the visa holder for engaging in these activities and there are no other indicia of prohibited activity, there should be little risk of detention or removal.
There are two common areas of concern with regard to network that actually have more forgiving rules than many people realize. One is whether an international creator or other comics industry professional can actively pursue employment or a business deal while traveling in the U.S. This is in fact allowed even under current law and practice, although noting this in an admissions process interview or on social media can lead to heightened scrutiny.
Here as elsewhere referring to the core points noted above can be helpful: what enforcement agent typically wants to see is that the traveler nonetheless intends to continue their foreign residence and not to abandon their existing domicile. Thus, if questioned about a stated job-seeking intent, an evident commitment to returning home and securing the appropriate work visa (e.g., an H visa) if hired can substantially reduce the risk of a denial or removal. Similarly, negotiating a deal for work completed back in the traveler’s home country and paid to a non-U.S. bank is typically seen as not competing with U.S. workers and thus not inconsistent with permitted business travel.
Another area of concern is whether a B-1 visa or business ESTA travel is jeopardized by accepting reimbursement of expenses by a U.S. company. According to the Foreign Affairs manual, reimbursement is generally allowed so long it is not effectively a form of compensation: although “a nonimmigrant in B-1 status may not receive a salary from a U.S. source for services rendered in connection with their activities in the United States,” they can receive an expense allowance or reimbursement for incidental expenses not in excess of “the actual reasonable expenses the applicant will incur in traveling to and from the event, together with living expenses the applicant reasonably can be expected to incur for meals, lodging, laundry, and other basic services.”
Participating in panels
Speaking on panels and other programs is another relatively low-risk activity so long as no compensation is involved. There is an exception for academic honoraria for certain speaking engagements, but this exception is subject to strict rules: for example, the talk must be given at an institution of higher education (or related nonprofit entity), a nonprofit research institution, or a governmental research organization – a range of categories that excludes most comic-cons.
Even if a talk is not compensated, as recently attempted deportations of certain activists indicates, there is a risk that some government officials could deem a speech opposed to the current administration’s foreign policy in certain areas to be adverse to the national interest. Here as elsewhere, I’m not noting this to encourage self-censorship; rather, if this were to become an issue, I hope that you will let us know.
Completing commissions and other creative work
Government policy across party lines has long viewed the completion of paid creative work in the U.S. to compete with U.S. workers, which even before Trump had led to the CBLDF becoming involved in cases in which an admission or evidence that commissions would be completed at conventions became grounds for barring creators from the U.S. This applies to both tourists and business travelers, although the rules for travel on a B-1 visa or ESTA have long allowed business travelers to take orders for work to be completed back home outside the U.S.
Selling original art, comics, merch, and autographs
Immigration officials and judges have likewise concluded that selling direct to consumers is inconsistent with the terms of a B-1 visa or ESTA travel for a business purpose. For example, here’s a federal appeals court’s summary of a Board of Immigration Appeals’ ruling that the court found to be a reasonable interpretation of “the line between permissible ‘business’ and impermissible employment”:
With respect to the issue of the B–1 visa, the BIA found that Mwongera’s business had developed into one in which he no longer took orders to be filled in Kenya, but rather sold directly to consumers in the United States. The BIA also found that Mwongera’s plans were vague and open-ended with respect to his contemplated stay in the country, and that he had spent twenty of the previous twenty-four months in the United States. Accordingly, the BIA ruled that Mwongera’s B–1 visa was not appropriate for his activities because Mwongera was not contemplating a temporary stay and because his business had developed such that his commercial activities had become employment for which he was not authorized.
This policy creates serious risk for selling original art, comics, and other items while on a B-1 visa, regardless of whether such activity might be deemed protected expression under the First Amendment in areas of law outside immigration. It likewise could be extended to selling autographs and conducting paid signings.
Working or volunteering at a booth
The restrictions on activity compensated by a U.S. employer would extend to paid work at booth, from serving as exhibitor staff to making a paid promotional appearance. Volunteering at a booth, however, would appear to be consistent with B-1 business and B-2 leisure travel as well as ESTA.
Cosplay contests and other events with prizes
This might counter-intuitive, but from an immigration law perspective, winning a contest prize could in certain circumstances be deemed a visa violation, particularly for someone in the U.S. as a tourist. Although we have not yet received any reports of comics-related prize contests being targeted, the government has developed a general rubric for assessing participation in prize contests by international tourists and business travelers.
Building on the core reference points noted above, the general rules for evaluating contests look to whether the traveler is regularly compensated for engaging in the contest activity. Amateur status is a key factor: for example, under the Foreign Affairs Manual rules applicable to performing artists, a professional cosplayer – such as a cosplay influencer who has turned it into a paid side hustle or full-time enterprise – arguably
cannot qualify for a B-2 [tourist] visa based on this note even if the performer does not make a living at performing or agrees to perform in the United States without compensation. Thus, an amateur (or group of amateurs) who will not be paid for performances and will perform in a social and/or charitable context or as a competitor in a talent show, contest, athletic event, or other similar activity is eligible for B-2 classification, even if the incidental expenses associated with the visit are reimbursed.
Conversely, applying a related rule, it would appear that professional cosplayers could be part of comic-con cosplay masquerades while on a B-1 visa or ESTA business travel, so long as they are “coming to the United States to participate in a competition for which there is no remuneration other than a prize (monetary or otherwise) and expenses.”
Alternatives to B visa and ESTA travel
Of course, this is not a comprehensive examination of every possible situation that could be encountered by B visa or ESTA travelers to U.S. comic-cons, nor is it designed to be legal advice – at the very least, I hope that it can be a helpful guide to anyone who wants to have an informed consultation with their own counsel.
But what about creators and others in the comics community planning to engage in activities not consistent with a B visa or ESTA? That will be the subject of our next post!