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First of all, thanks for taking the time to read this. I have scoured the internet and found so many different variations of answers on this topic, but nothing relating directly to my exact situation.

As a UK photographer/photo editor, I am able to accept work from US clients, provided the actual photoshoot is on European soil, or alternatively if contracted only to edit pre-existing images handed over from the US client, provided that the editing is also carried out on European/UK soil.

However, I have now recently been invited by a US couple to shoot a wedding in New York state and the opportunity for travel would be amazing. After reviewing all of the visa options I would be traveling on the visa waiver programme (ESTA), which is in my understanding equal to the B1 visa in terms of allowances for business and tourism activities - upon investigation of the ESTA & visa laws, it seems that photographs can be taken while travelling providing that "no income is received from a US source" and if "no gainful employment" is sought - "gainful employment" being essentially regular or ongoing work, not simply a one-time wedding shoot.

I have also read topics on "displacing local workers" who could also photograph the wedding if I were not. My reasoning for wanting to still go ahead with it despite this is that photography and editing style is a kind of art, and all art is unique, so even though another photographer could technically shoot the wedding, nobody could shoot it and edit exactly in the style that I would (and that is what this particular couple want in this situation).

With all of the above in mind, my main questions are -

  • If I were to sacrifice the charge for the wedding day shoot portion of the service, not charge the couple and not receive an income at all for the wedding day shoot itself (which in any case would not be classed as gainful employment), could I still attend the wedding and shoot it?

  • If the above is legally possible, would it be possible to contract only the post-wedding editing aspect of the captured images for an fee agreed prior to the wedding, provided all prior consultations, contracting, payment receipts, editing and delivery were performed back in the UK?

This would essentially be a contract split into 2 parts - a fee-free wedding day shoot and then a payable editing service afterwards that was fully carried out in the UK.

I don't want to overstep the mark and will not be contracting this shoot or any other if it is entirely illegal, but to travel and shoot in the US is a real huge opportunity and if cutting my prices in half and writing a specific unique contract will legally enable me to do so, I would love to take it.

Thanks again for reading. Any feedback and answers hugely appreciated.

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    I've had friends go to the US to speak at a conference, having done all the writing and rehearsing in their own country, and not getting an honorarium, be turned away by the border officer with "an American could give that talk" (which is utterly untrue -- very few conference talks could be given by another speaker) and I have had others admitted without incident. I think there's a very large luck factor in this. Technically on a business visit you can discuss the stuff you're going to do for a client, but you can't do it.
    – Kate Gregory
    Commented Mar 21 at 1:52
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    Splitting your contract so that you pretend to do the actual photography for free, but charge for the later editing is such a blatant attempt to circumvent immigration law, that you are not going to get through with that if questioned. In reality, your customer will pay for the 'whole package' as you would have no means to do and charge for the later editing without beforehand actually having performed labour on US soil. Since you in your question seem to treat UK and European soil equally: The same probably applies if you have assignments in Europe outside the UK.
    – Tor-Einar Jarnbjo
    Commented Mar 21 at 6:43
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    – Willeke ♦
    Commented Mar 23 at 14:56

2 Answers 2

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The American immigration law prohibits employment, not being paid. It doesn't matter for the purpose of the immigration law whether you're being paid for your work (it does matter for tax law, of course). I don't know where the "gainful employment" quote comes from, but the INA section defining the B status (8 USC 1011(a)(15)(B)) says:

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;

Nothing about payment, everything about performing skilled or unskilled labor.

The question boils down to "is this labor". I'd argue it is. As opposed to being a keynote speaker at a conference (which is usually not the actual job of the speaker, American or foreign), doing photography work is... doing photography work. You're doing your literal job. You're not allowed to do that on a B1 visa, and you're not allowed to do that on ESTA.

You're comparing yourself to an artist, so here's a lawyer's writeup. The relevant portion for B1 being appropriate that may correspond to your situation:

Where an artist is coming to the United States to paint, sculpt, etc., and who is not under contract with a US employer, and who does not intend to regularly sell such art-work in the United States.

But in your case you do have a US employer - the couple inviting you is a US couple. So you might have been OK coming with a British couple to photograph their wedding (at least based on this interpretation, others might argue that it is labor nonetheless), but I don't think you're OK photographing the wedding of Americans.

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    Yeah I think the crux of it is the fact that it's a US couple looking to contract. Thanks for taking the time to reply.
    – Ccass
    Commented Mar 21 at 7:27
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    @Ccass if it is allowed to photograph a foreign couple's wedding under otherwise similar circumstances (which isn't particularly clear), it's probably more about the couple's country of domicile than citizenship. CBP would be unlikely to let you through even if you could argue "but the couple are British citizens."
    – phoog
    Commented Mar 21 at 8:24
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    @Ccass, that alternative sounds more legally possible as you wouldn't be deceiving anyone this way, but it may warrant a new question by itself
    – Hoki
    Commented Mar 21 at 12:18
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    @Ccass For what it's worth, I'd recommend asking that question about subcontracting the actual photography to an American on the Law SE site rather than Travel, since it's not really about travel, but definitely is about law. Lawyers (or at least those familiar with law) will be able to give you better answers. Granted, if you decide you want to go forward with that, then you may also want to actually get a lawyer to help you work out the details of what is an isn't legal, how to deal with the taxes, write the contract(s), etc.
    – reirab
    Commented Mar 21 at 13:27
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    @reirab: IMHO this is exactly the sort of question that probably should have gone straight to a lawyer in the first place. International business law is very complicated, and there may be issues that are not obvious to us.
    – Kevin
    Commented Mar 21 at 18:37
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After reviewing elements of the immigration law that I was previously unaware of, it is clear that carrying out any kind of work or labor, regardless of pay, is ultimately prohibited for non-US citizens.

The best alternative solution appears to be to subcontract a US associate photographer to carry out the on-the-day work on our behalf, therefore I have arranged a meeting with a lawyer to discuss details on how this would work and decide from there if it will be viable

Thank you everybody for your input and help. Take care.

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    Although I see what you meant, citizenship is not the main factor here. It's prohibited on visitor visa types. There's a bunch of ways for non-US citizens to work legally in the US (getting appropriate visa or permanent residency), it's just that they don't fit your goals well.
    – TooTea
    Commented Mar 22 at 13:56

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