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I am an influencer and I am traveling to the US for vacation, where I would publish posts about my trip and earn income from it. Can I do this on B1/B2 visitor or ESTA status, or do I need a work visa?

An influencer with a video camera recording himself

Increasingly with the rise of various streams of income through social media, a commonly found question is whether influencers visiting the US while being compensated for posts they publish are required to have a work visa for this arrangement, or could this be done through B1/B2 visitor status or on ESTA.

The short answer is, “it depends.” Whether this is permissible is very much dependent on the specific facts of each case. Let’s consider a few scenarios.

I am a brand ambassador for a swimsuit brand headquartered in my home country. I am on a two-week vacation in Hawaii and while I’m at the resort, I am posting pictures of myself in the pool wearing swimsuits of this brand that’s paying me for each post I write. Is this permitted on B1/B2 visitor or ESTA status?

In this scenario, the influencer is being compensated for these posts by a foreign company, not from U.S. source. It is also arguable that the primary purpose of the trip is vacationing, and the “work” in the form of taking pictures in the pool appears incidental to the primary purpose. In addition, the trip is only two weeks of duration. In these circumstances, there is room to argue that such activities do not constitute unauthorized “work” for the purposes of the B1/B2 or ESTA status.

Hilton Hawaii Resort, which is a US company, has rolled out a new vacation package with premium features. I am a famous travel Instagram influencer with over a million followers. I have signed an agreement with Hilton Hawaii to fly into Hawaii to stay at the resort and write posts, and will be paid an advertisement fee of $30,000 per post.

Here, we have a US company actually “hiring” the influencer to come to the US and generate these Instagram posts, and the influencer is flying into the US pursuant to a contract as opposed to taking a personal vacation. In this case, there is a higher risk that what the influencer is doing in the United States constitutes “working in the US” which would necessitate a work visa such as an O1, and would likely be not permitted under B1/B2 or ESTA status.

The line between permissible “incidental” activities and unauthorized “work” activities is not always clear. In cases like these influencer examples where the boundaries are gray, we highly recommend procuring the advice of counsel as each analysis would be very fact-specific and would involve differing degrees of risk even if the situations appear similar at first glance.

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