The recent detention of cartoonist Becky Burke and ongoing ICE raids exemplify the importance of understanding U.S. immigration law, which applies both to nonimmigrant temporary visitors and immigrants leaving their home countries to reside here permanently. The heightened degree of enforcement that we’re witnessing now did not spring out of nowhere – the rules have been in place for decades, however inconsistently they have been applied.
As is evident from the public outcry over Burke’s detention for using an openly marketed home stay service, punishing a tourist or business visitor for alleged accidental violations of visa technicalities can seem like a drastic overreaction, a disproportionate response fundamentally inconsistent with the core principles of justice. This is especially the case when government officials are targeting creative expression typically protected by the First Amendment, as when border patrol agents prevented Canadian artist Gisele Legace from going to C2E2 because she was bringing unfinished sketches or when Booker-Prize-winning author Ian McEwan was denied entry to the U.S. for planning to give a paid speech while on a tourist visa. Yet as we shall see, U.S. immigration law contains rules and categories that make precisely these sorts of enforcement actions possible, whether in line with long-established precedent or a mistaken application of the law’s literal words.
Before we get into more granular scenarios involving visa travel to comic-cons, it can be helpful to familiarize ourselves with the legal foundation on which everything in this series will rest.
Alphabet soup
As noted in our earlier analysis of tourist visas prompted by the Burke case, the U.S. visa system presents us with a jumble of categories named after letters of the alphabet:
- Most international visitors to U.S. conventions arrive here on B-1 (business) visas, B-2 (tourist) visas, combined B-1/B-2 visas, or, for citizens of certain countries, the Visa Waiver Program. The latter is more popularly known as ESTA, which is technically the electronic system for travel authorization through the VWP.
- F and M visas are for students.
- H-1B visas are for people in specialty occupations, Department of Defense workers, or fashion models.
- I visas are for journalists and other media representatives.
- J visas are for scholars or teachers on exchange visitor programs.
- O visas are for individuals of extraordinary ability or achievement in specific fields.
- P visas are for athletes, entertainers, or performing artists.
While the names of the visa system’s letter-based categories might seem arbitrary, they actually reflect the respective sections of the Immigration Act under which each is defined: the B visas are defined in 8 U.S. Code § 1101(a)(15)(B), the F visas are from 8 U.S.C. § 1101(a)(15)(F), and so forth. The government further classifies B-1, B-2, and ESTA visas as visitor visas, a category in which the visa holder is prohibited from employment, studying in a course or program to receive academic credit, participating in a paid or professional performance before a live audience, or working as a journalist. The I visa for working nonimmigrant media, who are excluded from the B-visa category, while the H-1B, O, and P visas are categorized as temporary worker visas.
Immigrant vs. nonimmigrant
The references to the Immigration Act embedded in U.S. nonimmigrant visa names are more than an interesting (at least to lawyers) bit of legal trivia. They point to the defining framework for enforcement today.
Whether and how long a person from another country can enter or stay in the U.S. depends on their status as an immigrant or nonimmigrant. As the above cartoon from the 1920s illustrates, our current immigration system was designed to place strict limits on the number of people eligible to enter the country as immigrants, a quota system that still continues to be enforced in essence if not in its initial limits. Quota issues or failure to meet the standards for entering the country for permanent residence can result in the denials of entry, detentions, and deportations that are garnering headlines today.
The number of people allowed to emigrate to the U.S. as permanent residents is relatively small, less than the average number of international travelers who arrive here every week. The letter-named nonimmigrant visas established under 8 U.S.C. § 1108(a)(15) facilitate international travel by exempting the traveler from quotas and rules applicable to immigrants. Nonimmigrants can stay in the U.S. for the time allowed under their applicable category, and they can conduct such activities as their category allows.
However, staying beyond the permitted time or doing things that a government agent considers to be inconsistent with their visa category can take a traveler outside of the protection provided by non-immigrant status. This can not only lead border patrol officials to refuse someone entry, but it can also result in detention and removal.
Limiting principles
The adoption of an immigration statute designed more to keep people out of the country than to enable them to enter has led to a visa system filled with legal landmines. All too often, the very services that ostensibly offer to help temporary visitors in their short-term stays can seem like red flags to border patrol and immigration officials, especially in a time of heightened enforcement.
Consider, for example, the B-1 and B-2 visas, which we’ll be examining in even more depth throughout the rest of this series. Under the core logic of limiting access that suffuses U.S. immigration law, the language that defines these visa categories provides the basis for a range of requirements and restrictions that often do not seem obvious to B visa holders.
According to 8 U.S.C. § 1108(a)(15)(B), the category of “immigrant” does not include
an alien (other than one coming for the purpose of study or of performing skilled or unskilled labor or as a representative of foreign press, radio, film, or other foreign information media coming to engage in such vocation) having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure.
For a tourist who is here for several weeks’ stay, doing light housework or, say, taking the occasional DoorDash gig to make a few dollars to cover room and meal costs might not seem at all inconsistent with being in the country merely for a short-term stay. However, border patrol and ICE agents are trained to see any sort of compensated work as inherently inconsistent with being here solely “for pleasure.” Moreover, when determining whether to allow a tourist into the country, an officer might see the lack of hotel or AirBnB reservations for the entirety of the stay as a sign that the traveler might either be planning to work or intending to find a more permanent residence.
Conversely, a person here on a business visa might think that this gives them the right to do to make money from any kind of transactional enterprise. The U.S. government, however, does not agree. The types of business activity allowed for the B-1 visa category are restricted to commercial or professional activity that, echoing the tourist visa rules, does not involve “gainful employment in the United States” Instead, typical activity allowed under the B-1 visa includes
- Taking orders for goods manufactured abroad;
- Negotiating contracts;
- Consulting with business associates;
- Litigating;
- Participating in scientific, educational, professional, or business conventions, conferences, or seminars; or
- Conducting independent research.
The reason for the strict boundaries on compensated work in the U.S. for both B-1 and B-2 visas can be found in the Supreme Court’s landmark ruling in Karnuth v. United States, which explained how the restrictive approach embodied in immigration quotas also applies to tourist and business visas. According to the Court, the Immigration Act embodied a “policy of restricting immigration,” one of whose “great purposes was to protect American labor against the influx of foreign labor.” Thus, even a business visa does not give someone the right “to labor for hire in competition with American workmen, whose protection it was one of the main purposes of the legislation to secure.”
Creative Work and the First Amendment
Practically speaking, what does the restriction on “labor for hire” mean for international comics creators and others traveling to comic-cons in the U.S.? Does it apply to selling one’s own original art? How can immigration law restrict the freedom to write or to draw? And if certain types of compensated creativity are not allowed for tourist or business visa holders, is it possible to do that work under another visa category? More on that in upcoming posts, beginning with the question of whether, for visa purposes, transactions involving creative expression protected by the First Amendment actually qualify as prohibited labor.