Hello yetanotherguy-ga,
At the outset, I should emphasize the important disclaimer at the
bottom of this page, which states that answers provided on Google
Answers are not intended to substitute for informed professional legal
advice. As a Researcher for Google Answers, all I can do is provide
the results of my research. I cannot claim to be an immigration
expert. If you need professional legal advice, you should contact a
lawyer in your country who is an expert on US immigration law.
Perhaps the research I have done can serve as a basis for your
discussion with a legal expert.
From your reference to the current laws, it appears that you already
have some knowledge of the laws that govern visa waivers, business
visitors, and nonimmigrant work visas. At the risk of restating what
you already know, here is a background to my answer.
The visa waiver program allows for a waiver of the nonimmigrant visa
requirement for nationals of certain countries who seek entry to the
US "as a nonimmigrant visitor (described in section 101(a)(15)(B)) for
a period not exceeding 90 days."
"INA: Act 217 - Visa Waiver Program For Certain Visitors"
Immigration and Naturalization Service [hereinafter "INS"]
http://www.ins.gov/lpBin/lpext.dll/inserts/slb/slb-1/slb-21/slb-3675?f=templates&fn=document-frame.htm#slb-act217
A nonimmigrant visitor as described in section 101(a)(15)(B) is:
"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."
"INA: Act 101 - Definitions" (subsection (a)(15)(B))
INS
http://www.ins.gov/lpBin/lpext.dll/inserts/slb/slb-1/slb-21/slb-456?f=templates&fn=document-frame.htm#slb-act101a15b
Nonimmigrant visitors who are not nationals of countries in the visa
waiver program are divided into visitors for business and visitors for
pleasure, and designated B-1 and B-2 respectively.
"Title 8 of Code of Federal Regulations (8 CFR)/8 CFR PART 214 --
Nonimmigrant Classes/Sec. 214.1 Requirements for admission, extension,
and maintenance of status."
INS
http://www.ins.usdoj.gov/lpBin/lpext.dll/inserts/slb/slb-1/slb-9705/slb-17257/slb-17325?f=templates&fn=document-frame.htm#slb-8cfrsec2141
"Inserts/Service Law Books/Service Law Books Menu /Title 8 of Code of
Federal Regulations (8 CFR)/8 CFR PART 214 -- Nonimmigrant
Classes/Sec. 214.2(b) Visitors"
INS
http://www.ins.usdoj.gov/lpBin/lpext.dll/inserts/slb/slb-1/slb-9705/slb-17257/slb-17325?f=templates&fn=document-frame.htm
The designated countries for the visa waiver program are listed in the
Code of Federal Regulations:
"Title 8 of Code of Federal Regulations (8 CFR)/8 CFR PART 217 -- Visa
Waiver Program (Heading revised 2/21/02; 67 FR 7943)/Sec. 217.2
Eligibility. (Section revised effective 4/1/97; 62 FR 10312)"
INS
http://www.ins.gov/lpBin/lpext.dll/inserts/slb/slb-1/slb-9705/slb-21370/slb-21397?f=templates&fn=document-frame.htm#slb-8cfrsec2172
In sum, it appears to me that a national of a country in the visa
waiver program does not need a B-1 visa as a visitor for business.
Still, it also appears to me that such a person is seeking entry as a
visitor for business, and would therefore be subject to the guidelines
defining who is or is not a visitor for business. That is a key
premise of your question, and while I am not an immigration expert, my
impression is that this premise is correct.
That is all background; now comes the material that relates to your
questions.
The State Department's Foreign Affairs Manual contains guidelines as
to what constitutes "business" with respect to visitors for business.
The manual's notes on temporary visitors for business or pleasure
include the following guideline:
"9 FAM 41.31 N5 Aliens Traveling to the United States to Engage in
Commercial Transactions, Negotiations, Consultations, Conferences,
etc.
(TL:VISA-268; 04-26-2001)
Aliens shall be classified B-1 visitors for business, if otherwise
eligible, if they are traveling to the United States to:
(1) Engage in commercial transactions, which do not involve gainful
employment in the United States (such as a merchant who takes orders
for goods manufactured abroad);
(2) Negotiate contracts;
(3) Consult with business associates;
(4) Litigate;
(5) Participate in scientific, educational, professional or business
conventions, conferences, or seminars; or
(6) Undertake independent research."
Another note from the manual deals with the issue of compensation:
"9 FAM 41.31 N3.4 Incidental Expenses or Remuneration
(TL:VISA-268; 04-26-2001)
A nonimmigrant in B-1 status may not receive a salary from a U.S.
source for services rendered in connection with his or her activities
in the United States. A U.S. source, however, may provide the alien
with an expense allowance or reimbursement for expenses incidental to
the temporary stay. Incidental expenses may not exceed the actual
reasonable expenses the alien will incur in traveling to and from the
event, together with living expenses the alien reasonably can be
expected to incur for meals, lodging, laundry, and other basic
services."
"U.S. Department of State Foreign Affairs Manual Volume 9 - Visas
9 FAM 41.31 Notes (TL:VISA-469; 10-04-2002)"
U.S. Department of State
http://foia.state.gov/masterdocs/09fam/0941031N.pdf
In adddition, the INS Office of Business Liaison has published a
bulletin on permissible activities for business visitors. Included
among those activities (on page 2 of the document) are "commercial
transactions that do not involve gainful US employment (e.g. taking
orders for foreign goods)", "contract negotiation", "consultation
with business associates", and "participation in scientific,
educational, professional or business conventions, conferences, or
seminars".
Page 1 of the bulletin discusses the issue of compensation:
"B-1 nonimmigrants may not receive salaries or other remuneration from
US sources for services rendered in connection with activities in the
US. A US source, however, may provide these aliens with expense
allowances or reimbursement for expenses incidental to their temporary
stays.
Honoraria: In common parlance, the term 'honorarium' may refer to
compensation for services, reimbursable or per diem expenses, or both.
Under immigration law, however, honorarium payments to B-1 business
visitors are restricted to persons whose actual place of accrual of
profits from services rendered is abroad and must not exceed the
reasonable cost of incidental expenses, calculated on the basis of the
individuals' customary living standard and the relative cost of living
in the US."
"Permissible Activities for Business Visitors" (Employer Information
Bulletin 99-03 Business Visitor Activities (6/00))
U.S. Business Advisor
http://www.business.gov/busadv/ins/EIB3.PDF
That is the "business" side of the guidelines. There are also
guidelines relating to "work". In particular, there are many rules
for the nonimmigrant work visas, such as the H1-B, L1-A, L1-B, and
O-3, which look like the most likely visas for which a (presumably
well-regarded!) software development consultant might be eligible.
"Immigration Categories and Classifications"
INS
http://www.ins.usdoj.gov/graphics/services/visas.htm
"Foreign Affairs Manual & Foreign Affairs Handbooks: 9 FAM Visas Table
of Contents" (Sections 41.53, 41.54, 41.55)
U.S. Department of State
http://foia.state.gov/fam/fams.asp?level=2&id=10&fam=0
However, I think that sufficient definition of the "work" that is
impermissible for a business visitor comes from the Foreign Affairs
Manual and Business Information Bulletin cited above.
The Foreign Affairs Manual states, in 9 FAM 41.31 N4 Aliens Traveling
to the United States as Visitors for Business):
"Engaging in business contemplated for B-1 visa classification
generally entails business activities other than the performance of
skilled or unskilled labor. Thus, the issuance of a B-1 visa is not
intended for the purpose of obtaining and engaging in employment while
in the United States."
The Business Information Bulletin explains that a B-1 visa:
"does not entitle business visitors to enter the US labor market,
meaning employment activities that are domestic in nature and/or
positions that are
generally filled on a competitive basis within the US pool of
authorized citizen, lawful permanent resident, and nonimmigrant
workers. A US employer may not employ a business visitor in the US."
As a layperson, not a lawyer, it appears to me that these guidelines
on permitted "business" and forbidden "work" (labor or employment)
apply to your situation as follows:
* Speaking at a conference appears to be permitted business, not
forbidden work.
* Speaking at a conference as the author of a number of books on these
topics in itself appears to be business, not work. Speaking for the
promotion of your books, published in the US, is a closer question.
If your purpose is to sell books at the conference to attendees, that
would seem to be covered by "engaging in commercial transactions" and
"negotiating contracts", which are considered business. However, if
you are promoting the books to satisfy the US publisher, that would
seem to be prohibited labor or employment. (Perhaps this is why the
guidelines mention commercial transactions in "foreign goods" or
"goods manufactured abroad" as a clear example of something that is
permitted business.) I suppose the answer depends on your purpose for
promoting the books and your written or unwritten agreements with the
U.S. publisher. If your purpose in promoting the book is to benefit
yourself or the persons at the conference -- so that the benefit to
the publisher is only incidental -- and if the publisher does not
require you to promote these books, then it would seem that you are
engaging in business for yourself. However, if your purpose is to
benefit the publisher, and if you have agreed with the publisher that
you will promote your books at conferences like this, then it would
seem that you are engaging in work. (This question seems perfectly
suited for a lawyer to consider.)
* The situation may change from "business" to "work" if you accept
money for the talks. If you accept money solely for the preparation
(production of materials, proceedings, etc.) of the talks, I think
that the business activity would become work, since this money
apparently falls outside the category of expenses incidental to your
stay in the U.S. However, this might only be a problem if this money
comes from a U.S. source. If a registered company (registered in the
European Union) reimburses you for these tasks, then I think you would
not be working for anyone in the U.S.
I'll end as I began -- this information is only the product of my
research, not legal advice. I hope that it gives you a basis for
consulting with a lawyer in your country, in the event that you do
seek legal advice.
- justaskscott-ga
I used the following search terms, alone or in various combinations,
on the web sites of the INS, State Department, and/or Google:
"visa waiver"
visa
visas
nonimmigrant
"non-immigrant"
business
visitor
visitors
b-1
"101(a)(15)(B))"
work
"foreign affairs manual"
site:gov
ins
I also browsed the INS and State Deparmtent web sites. |
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