The rapid evolution of technology, combined with the sweeping changes brought about by the onset of remote work and the massive advancements within social media, has transformed our understanding of “work”. With this transformation, come nuances and challenges in evaluating an individual’s intent when entering the U.S., especially as a visitor.
Historically, cases like Matter of Hira 11 I&N Dec. 824 (BIA 1965) involving a tailor taking measurements in the U.S. for suits made in Hong Kong, Matter of W 6 I&N Dec. 832 (BIA 1955) detailing Canadian truck drivers’ operations, and Matter of B and K 6 I&N Dec. 827 (BIA 1955) showcasing Canadian farmers selling produce in the U.S., have provided the blueprint for evaluation. These cases underline three pivotal factors:
- Foreign Domicile – A sustained intent of the applicant to uphold their foreign residence and not forsake their existing domicile.
- Foreign Place of Business – The dominance of the principal place of business and profit accrual in the foreign nation.
- Temporary Intent – U.S. entries should predominantly display a temporary nature, irrespective of the business activity’s duration.
CBP’s Perspective on Visitor Entry Intent
But what’s the CBP’s stand on these factors in today’s context?
- Relevance of Traditional Factors: CBP recognizes the above factors as a relevant authority. Key considerations now also include the source of the individual’s remuneration, their influence on the local labor market, and the place of their compensation.
- Teleworking Conundrum: Teleworking, especially while on a trip, could lead to secondary referrals during an inspection. While CBP might not question every traveler about their work intentions, volunteered information leading to potential concerns will undoubtedly be scrutinized.
- Monetizing Social Media Activities: The CBP acknowledges the gray area surrounding visitors who post on social media platforms and subsequently earn from it. If the primary activities and compensations are sourced outside the U.S., such visitors might still be considered under visitor status. However, the thin line remains. If a brand, let’s say, Nike, hires an influencer specifically for activities in the U.S., the situation becomes complex.
In conclusion, the world of work is continuously evolving, and the definitions that once seemed rigid are now more fluid than ever. It becomes imperative for both visitors and CBP to keep pace with these changes to ensure a balance between seamless travel facilitation and strict law enforcement.
Additional Outside Information
- Matter of Hira 11 I&N Dec. 824 (BIA 1965)
- Matter of W 6 I&N Dec. 832 (BIA 1955
- Matter of B and K 6 I&N Dec. 827 (BIA 1955)
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