A Year Later, The Question Still Remains

I started this blog after an experience trying to cross the border into the US for a speaking opportunity. While I made some headway, I never really did get a full, clear answer on what the rules are. My mitigation policy: don’t speak in the US. Without knowing all the rules, and with the rules not being readily available and easily accessible, it just wasn’t worth the risk. As it turns out I’ve had an amazing year travelling and speaking within Canada, and my career and opportunities definitely were not diminished because I restricted myself to Canada…quite the opposite actually.

However, I’ve refocused on determining once and for all what the rules are around foreigners (specifically Canadians) performing speaking engagements within the US. The catalyst was the recent experience of a fellow Canadian (and Winnipegger) who had an almost carbon-copy experience, but with a new twist.

Lyndsay was scheduled to speak at a conference in Las Vegas. She wasn’t getting paid by the conference aside from expenses but the attendees were paying (this is important, as you’ll see in a second). She was questioned about her activities and was informed that foreigners were not allowed to speak at a conference where attendees were paying, even if they weren’t receiving an honorarium. As she writes:

I was told, people CANNOT go to the United States to speak at a conference that people pay to attend. The supervisor seemed aghast when I said that I had done it many times before – he likened it to admitting I’ve done these horrible fraudulent activities in the past. He informed me that I was lucky I’d never been caught before, and that the other hundreds and thousands of Canadians who go to the US on a daily basis to speak are also “lucky” they’d never been caught.

Well this is a new twist! In my attempts to cross to speak the issue was always that I was going to receive money that an American could have received, but nothing was said of the attendees paying. This might be why events like Code Camps (which are free for attendees and provide no coverage for speakers) was never an issue for me to attend.

Lyndsay started doing the same things that I did: finding out how this horrible mistake could be made. After all, like the border officer said to her, there are hundreds and thousands of Canadians that go to the US to speak all the time. Could it really be that they were just “lucky” that they didn’t get caught?

She found the same US State Dept document that I did, which contains the following regarding a foreign lecturer or speaker:

No salary or income from a U.S. based company/entity, other than expenses incidental to the visit. If honorarium will be received, activities can last no longer than nine days at any single institution or organization; payment must be offered by an institution or organization described in INA 212(g); honorarium is for services conducted for the benefit of the institution or entity; and visa applicant will not have accepted such payment or expenses from more than five institutions or organizations over the last six months.

The problem is in that one line: payment must be offered by an institution or organization described in INA 212(g). INA stands for the Immigration and Nationality Act and is key legislation as it relates to US citizenship and immigration. When we go to section 212 of the act on the USCIS website, we see there is no 212(g)! in fact, doing a search of the word “organization” just brings up references in relation to terrorist organizations and “institution” references it in a correctional institution context. This leads me to think that the US State Dept. website is out of date or inaccurate.

Trying to navigate through the Canadian-focussed sites on the US government’s web is frustrating and pointless. The consular service site for Canada has no easily found information. A site search for “lecturer” returns no results. And as we’ve already seen, the US Dept of State site is suspect. Luckily, there is information out there that helps lead us in the right direction. We just have to look on the website for the US Embassy in London.

Here we have more detailed information regarding speaking/lecturing. To summarize, it says if you’re speaking in the US and not collecting an honorarium and just having expenses covered then a B-1 is fine. However, if you are collecting an honorarium then there’s one glaring criteria that must be met:

The institution is a nonprofit research organization or a governmental research organization, or an institution of higher education, or a related or affiliated nonprofit entity.

Now we’re getting somewhere! So, assuming that these rules are applied to Canadians and UK citizens alike, it suggests speakers receiving an honorarium can only speak for non-profit, government, or educational organizations. Speaking for any other organization will require a different visa than the B-1 (an H-1 for instance).

Unfortunately, this verbiage doesn’t address the issue of not getting paid to speak at an event where attendees are paying to attend. But its a step in the right direction.

As I mentioned in my previous post, there’s a new email address set up by DHS to handle general inquiries. I’ll be sending off an email to them this week asking for clarification on the rules as well as references to the related acts and legislation. It’s time to answer this speaker question once and for all.