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American Learning Experience

02/06/2011

American Learning Experience

I write this on the plane back home. What should have been my longest business trip ever (3 weeks) turned out to be my shortest (3 hours). The US Customs & Border Protection (CBP) sent me back because I am not allowed to give courses in the USA.

How can this be?

I was invited by LeanDog to give two courses in the USA, one in Columbus and one in Cleveland. I have done courses in countries all over Europe (both in and outside of the EU), and I was never refused entry. And I have done business in the US before, having been paid for some speaking engagements, and even having a US tax number, needed for the royalties for my book.

So, when I arrived in Detroit, explained the nature of my business, and was taken aside by the CBP for further questioning, it didn’t even occur to me that my courses were a problem. At first I thought it was because I was traveling on a 2nd passport. Or because my ESTA form had given me trouble at Amsterdam airport.

But no, the reason was that a self-employed independent trainer is not allowed to “work in the USA”. The government official (who was very kind to me by the way) explained that “the rules are unfortunately stacked against independent consultants”. He tried to find loopholes, but there weren’t any. It didn’t matter that I have a company and a US tax number. And so, until somebody changes the law, he said, he had to send me back home. Even if I applied for a work visa, I wouldn’t get it, he told me. Work visas are usually given to people working for bigger companies, with legal entities in the US. The easiest thing to do would be to hire an American person to give my courses in the USA.

Was I being naïve? Certainly, I am always naive. I have an innate belief that things will always turn out fine, and that somehow the world will bend around my will. For me such obstructions are only obvious when looking back, after stumbling over them. I knew that foreigners cannot just go and work in the USA. (Europe is not so strict about this.) But I never realized that being invited and paid to do a simple 2-day course also counts as “work in the USA”.

I talked with dozens of people, both in the US and back home, about my scheduled courses. Nobody gave me any indication of what would happen. And I don’t blame anyone either. I bumped my head against a system. It hurts, but it happens. In fact, cases like mine happen all the time, a nice lady of the CBP told me. I thanked her for making me feel less stupid.

Fact is that my book is published in the USA, which means that its success is contributing (a little) to the treasury of the US government, but apparently this is not enough reason to allow me to give a course based on the book. Instead, this job should be picked up by a bigger company, or an American citizen.

It is ironic that part of my book is about getting rid of rules and bureaucracy, and doing things your own way. Sometimes, it seems, you can’t.

They asked me what my course was about. Maybe I should have left them a copy of the book.

p.s. I apologize to everyone in the US who had expected to see me. I was very much looking forward to this trip. I’m sure I will schedule a new one, with fewer misunderstandings.

(image: Anthony Quintano)


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This article is written by on in Uncategorized. Jurgen Appelo is at Happy Melly. Connect with Jurgen Appelo on .

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  • http://profile.typepad.com/patricksteyaert PatrickSteyaert

    That is crazy! There’s loads of US trainers giving courses in Europe.

  • avi

    You should have just told them you were on vacation.

  • Andy

    Can’t you say that you were just on a business trip?

  • http://hhgttg.de/blog/ Olaf Lewitz

    I can’t believe it. So stupid…
    The irony is striking, though.
    Take care
    Olaf

  • http://twitter.com/flowchainsensei Bob Marshall

    Maybe the EU authorities are more lax (or indifferent)?

  • Kevin

    This has happend to two friends of mine, both from the Netherlands both traveling in through Detroit. Seems like immigration in Detroit is harder on folks (because it’s on to the Canadian border maybe) than other cities. You have my sympathy

  • http://blog.schauderhaft.de Jens Schauder

    Maybe you should become a part time employee of an american company.

  • A fellow coach.

    When I worked for a big multinational company, their official HR advice was “Say you are going for an internal conference. Don’t mention the courses.”
    Enterprise HR. Hmmm.

  • Qba

    Hmmm… sound familiar to me… maybe the word ‘course’ should have been replaced by ‘business meeting’… This trick worked many times…
    just my2c

  • Dusan

    It is weird you have to work for big company to provide training. What if you would like to build up a big, new, company providing training? No way to do that in US?
    I was in US one year ago and there were two guys in front of me. One (guy form India) misunderstood question and he answered “I’m going to train” aka similar problems to yours. The second one answered ‘I’m going to be trained’ aka entry allowed.
    The result = trainer returning to India while trainee allowed to attend the training.
    BTW, what about american coaches in EU? I am sorry to ask that, does EU behave the same way? Any experience?

  • http://profile.typepad.com/rainsberger J. B. Rainsberger

    You could also hire Canadians to do the work for you, since training is explicitly allowed under NAFTA for Canadians who apply for a TN-1 visa to work in the US. Janet Gregory knows the exact paragraph in the statute to quote. You would simplify your life by hiring an American, but hiring a Canadian — or, I suppose, a Mexican, although I haven’t tried that — should work almost as well.
    I don’t know how Canadian border patrol treats Europeans teaching in Canada, but I could only guess they’d treat you better than the US CBP/ICE would.

  • http://profile.typepad.com/rainsberger J. B. Rainsberger

    The US CBP and ICE will usually follow that with several questions about the nature of your trip.

  • http://profile.typepad.com/rainsberger J. B. Rainsberger

    I have had a Detroit CBP guard tear the I-94 out of my passport before realising that I’m Canadian and that Canadians don’t have to surrender their I-94 when they leave the US.

  • http://profile.typepad.com/rainsberger J. B. Rainsberger

    I’m Canadian, and I’ve never had problems going into the EU. Of course, I don’t say “I’m training”, but I do tell them I’m consulting, and it’s not a problem. In my places, for example Turkey, they don’t speak English and so they don’t ask questions.

  • http://www.contextdrivenagility.com Adam Yuret

    Does this mean you won’t be speaking at SFAgilecon? I was looking forward to meeting you there. Is speaking at a conference “teaching courses” or is it “Entertainment”? Maybe you can market yourself as a management entertainer. You’re a monologist who uses audience participation in your act?
    Sorry you had this problem, I’d be pretty bummed to fly that far and be turned away.

  • http://www.contextdrivenagility.com Adam Yuret

    Bummer.

  • http://profile.typepad.com/jurgenappelo Jurgen Appelo

    Speaking at conferences is not the problem. It is unpaid work.
    However, I won’t be at SF Agile anymore, because I was sent home. And my courses were supposed to pay for the trip to the USA.

  • http://profile.typepad.com/johngoodpasture John Goodpasture

    I’m writing my senator and congressman! How stupid!

  • http://www.blumenfeld-maso.com/2011/05/scala-refactoring-quiet-my-scope-with-an-implicit-parameter-vs-pimp-my-lib-with-an-implicit-conversion-method/ Brian Maso

    Its unfortunate that large corporate presence is elbowing out independent, self-employed work in the US. As a US citizen, I experience the same thing *within* the US. I am an expert in my field of software development, and have been for many years. Years ago I could organize a contract with pretty much any US corporation for my services. Today, no corporation will even consider a personal services contract of any kind — all contracts must be between corporate entities. So I end up raising my rates and giving a portion to a third-party simply to represent me.
    I have my own corporation which I was able to use to make contracts for about 3 years. But because of the size of my company (I am the only employee) corporate clients haven’t been willing to make a direct contract for about 5 years now.
    Its a ridiculous state of affairs — a very significant amount of my total contract value (about 25%) gets paid to corporate middle-men. Its a bad system we’ve let develop. When opportunities and Europe and Asia pop up, I am all too happy to take them.

  • Paul Boos

    I wouldn’t follow advice for not revealing the true nature. If it ever was found out, you’d be in much bigger trouble (like perhaps arrested or fined).
    It is stupid though, very stupid. The one thing we can do is share talent and information, even if a hundred foreign folks came in a day to train others here, they would not displace any US trainers.
    My recommendation is contact one of the mid-size-to-larger training companies and become a consultant to them, then they can sponsor the appropriate visa.
    Sorry to hear you couldn’t come in… Glad they were at least pleasant to you.
    Cheers!
    Paul

  • http://etschneider.wordpress.com Etienne Schneider

    But what about when you attend a conference? You are paid by your university to go on US ground to speak and share knowledge and experience. Is it the same case?

  • Phil

    There are 3 things that you have to ensure…
    1) No direct renumeration from the US company.
    If you are self-employed (sole proprietorship) or have an business entity that the US does not see as a corporation then, in the eyes of the US, you are receiving direct payment from that US company while in the US.
    Becoming incorporated and receiving payment via your corporation means you are not receiving direct renumeration from the US company, and should solve this issue.
    2) Prove that you intend to return to your own country.
    Generally a return ticket is enough, but if you are not sure then take your home rental agreement from your home country, or other documents that tie you to having to come home.
    3) Purpose of visiting should fall in the correct category.
    Generally this is business meetings and other things that are not classes as “work”.
    I’m not sure where your work falls in 3, but it sounds like you had 1 and 2 covered.
    I’m definitely no expert, but I have talked to experts (immigration lawyers) and read up on this since I had the exact same experience. I have not since been back to the US. In my case I lost my visa waive right, which I thought was a little unfair. The government official was also reasonably nice, apart from calling me a liar at one point. In my case I was naive and fell short on points 1 and 3 from what I listed above.
    If anyone has any doubts, then I highly recommend speaking to an immigration lawyer before crossing the border. Being refused once can cause problems in future trips.

  • http://profile.typepad.com/jfbauer Jfbauer

    How extremely unfortunate. Rather disappointing that the US has become so exclusionary when our birth and heritage as a nation is based on inviting folks from all over the world. I wouldn’t be a US citizen (or be at all) if they turned away my mother born in Cardiff coming over on the Queen Mary.
    Terribly sorry you had such a negative experience.

  • http://profile.typepad.com/jurgenappelo Jurgen Appelo

    No, that’s a different matter. The crucial issue is a _US_ company paying a foreigner to do work in the US.

  • James

    If you’re not on vacation – and if you’ve got course details on the internet, you’re not – then I understand that it’s attempted fraud to say you are. That’s a felony, with a potential penalty of $250K / 5 years jail.
    Remember that if you’re using a visa waiver, you’ve waived your right to legal representation. Also that CBP are able to define ‘work’ in a way that means it does not have to be paid work.
    Finally, once you’ve been turned back, you can never use a visa waiver again (rules differ slightly for Canadians and Europeans). You’ll need to apply for a visa to go to (or through) the USA – and you must of course disclose that you’ve been refused entry before…

  • http://www.hanoulle.be YvesHanoulle

    What if you created our own company in the US. Is that an option?
    What if you were an employee of a European company that lets yougive a course in the US, is that still a problem?
    When we speak at conferences in the US and get a free entrance ticket, is that also a problem?

  • Aaron Suedmeyer

    I sent this to my congress woman Nancy Pelosi. Feel free to do the same. I don’t want leader in our industry to given a hard time.
    Nancy,
    I got this message today:
    “I was greatly looking forward to meeting Jurgen at SFAgilecon, turns out he isn’t going to make it due to our immigration laws.”
    Recently a teacher in the Software Field was refused entry into the US because he was getting paid for a 2 day lecture on Software Development.
    This is a travesty of the US and for Software Development. Now that Software Development is really becoming an international phenomenon, We would be handicapping the US if we reject these leaders in the industry.
    Here is a link to he’s experience with customs.
    http://www.noop.nl/2011/06/american-learning-experience.html
    Would you do what it takes to have these teachers be welcomed into the US?
    Thank you

  • http://agilesoftwaredevelopment.com Artem Marchenko

    Oh, you’ve got the whole trip canceled. I must say that until this blog post I also didn’t realize small course consultants actually need work permission in US. Well, it is work after all and rules were invented for industrial era realities.

  • http://agilescout.com Agile Scout

    I feel your pain man! Tell them next time you’re here to “see family.” (Your agile family!)

  • Nick @Clogish

    @Jens – He can’t do that, he doesn’t have a US work visa!
    @Jurgen – I’m sorry that I didn’t spot that you were heading to the US, I would have given you a headsup on my experiences.
    Did the CBP officer make any mention of how this might affect future trips to the US? You will now have to tick the ‘yes’ box on the back of form I-94 “Have you ever been denied entry to the US”.

  • http://profile.typepad.com/jurgenappelo Jurgen Appelo

    Yep, that’s what he said.
    Quite annoying. :-(

  • http://polingplace.blogspot.com Steve Poling

    This is stupid. I think you need to dispute the notion that you are a “self-employed independent trainer.” There must be another way to frame the fact-set of your circumstance.
    The bottom line is that you are engaging in high-technology transfer from a foreign country into the USA. Potentially vital technology we need to defend ourselves against invading Canadian hordes.

  • http://kalnin.net Thorsten O. Kalnin

    Is this real? Frankly, I can’t believe it, but i have to!
    Strange!!! Need to think about this – I did the same travel some weeks ago to Seattle – I had a Session at Scrum Gathering – is it different if you’re paid? Sorry, can’t believe it…
    Take Care!

  • http://SoftwareDevelopmentToday.blogspot.com Vasco Duarte

    Teh rulez are teh rulez. Sorry to hear that. Did they at least tell you what you need to do not to be turned back again in the future?

  • http://ziobrando.blogspot.com Alberto Brandolini

    Hi Jurgen. Thanks for sharing this. The information you provided, and learnt the hard way is definitely valuable.
    Once again, bureaucracy is shaped around a very inefficient type of business and acts as a drag for the non-conformist, often preventing interesting markets to spread and/or flourish. In cases like yours, anyway the system flaw is resilient: independent consultants from Europe have very little chances to be heard by some lobby. When flawed rules are against sparse individuals (with no voting rights, by the way) with occasional needs and little possibility to be heard …they’re probably there to stay much longer.
    It hurts, because that’s exactly the type of local optimization we’re striving to remove in our daily job. ;-)
    But it’s anyway weird that none of your customers realized there was a potential problem. Maybe they’re just practical people too, after all. I wonder if there’s any US based agency acting like a broker for non US freelancers though.

  • http://profile.typepad.com/catia1 Catia Oliveira

    Sounds a bit xenophobic to me.

  • http://scrum-breakfast.com Peter

    I had similar problems going to Canada. Fortunately I was hired by a Swiss company and my hiring manager was with me.
    The correct description of what I am doing was ‘attending meetings’ (which was also true ;-) ) and that was OK with Canadian officials. Although, if I had not had somebody experienced with Canadian immigration law accompanying me on the trip, I’m not convinced I would have gotten through.
    Sad fact: immigrants have no rights, and as far as I can tell, this is a universal truth.

  • http://www.proyectalis.com/en/blog Angel Medinilla

    Outrageous. Please let us know if you find the way to do it sucessfully. Some of us may find ourselves in the same case in the future :(

  • http://www.proyectalis.com/en/blog Angel Medinilla

    Oh, and by the way… How did you manage to come back? Did they find you a flight or did you have to manage it with your air company?

  • Scott

    I am not surprised. It does seem naive to think you can just hop on a plane to a foreign country and work there without a work visa. It’s not just the United States, it’s like this in every country of the world.
    When I travel to the US on business, I say I am going to attend a meeting. Attending a meeting is not “work” to US Customs. Strange but true.

  • Scott Davis

    Well I could have told you this and I am not an expert at all. To work in the US you need a work visa, end of story, no exceptions.
    Same as if I go to europe and get a job. Can’t do it without the right paperwork. Duh.

  • Scott Davis

    It’s intentionally designed that way. This was the specific issue that Joe Stack was protesting when he flew his cessna into the IRS offices in Austin.

  • xnotebook

    errr, a business trip is not work. you werent there for work, you were on a business trip.
    you screwed yourself out of your trip.

  • http://profile.typepad.com/timarmstrong Tim Armstrong

    Or the EU immigration laws are saner in this instance?

  • Genuine American, now Expat

    He was not nice to you, he was polite. He didn’t try to find you a loophole, he tried to pretend to be professional.
    The reality is, there is no law preventing you from doing this. He was actually breaking the law by denying you entry into the country.
    Unfortunately, these employees are not trained to follow the law, they are trained to follow custom. Custom is generally the set of policies that have accrued over several administrations and given that the government runs the judicial system, there is essentially no recourse to the law in america.
    It sucks that you were inconvenienced, but many americans are spending decades behind bars because of this– even though they broke no law, under the US system. (Unconstitutional laws are null and void according to the supreme court, but they are regularly enforced. It is this enforcement that is actually illegal– but who is going to prosecute the government for their crimes? Certainly not government prosecutors.)
    The best policy is simply to not do business with environments that are hostile to business. The USA is one such environment.

  • GL

    Generic can’t-be-bothered questions where you just need to use the right words… you don’t “deliver training”, you have a business meeting where (if the border police is particularly nosey) certain specific techniques will be discussed.

  • Jon W

    This is such terrible advice! You should never lie to federal officials unless you run a bank or donate millions to congresspeople. You will be in *real* trouble that won’t “work itself out somehow.”
    And if you’re paid, clearly it’s not business discussions.
    What I don’t understand, though, is how US companies can hire any foreign contractors under these rules — such as, say, outsourcing companies…

  • Anonymous

    You have to learn to massage the system… any system… including crossing borders.
    The trip is 3 weeks. Two days of that may involve speaking somewhere. So 19 of 21 days are vacation. You sir, are on vacation. You aren’t specifically defining “168 hours of sleep, 40 hours of driving, …” They just want a category. Tourist, no blacklist, come right in.
    Consider the tax exclusion for “business expenses”. If you take a client, coworker, partner, or whatever out to dinner, and you talk about business in the least, you can claim the whole meal as an expense on your taxes. The running joke I’ve heard is just telling the other person “Say the word business.” Done, you both said it. It’s the inverse of this. If you look out a window and admire the view, then you’re vacationing.
    So back to the case in point, if the government is going to treat you like a criminal, be that a smuggler, terrorist, or sneaking in to be an illegal alien, you better learn how to avoid interception.
    I’ve traveled a lot. There are tricks to getting through domestic TSA security, crossing international borders, and dealing with international customs and immigration, which they’ll pass you right through. And no, I won’t share them here. You just have to think “What is the path of least resistance?”
    It’s much easier to say “vacation” than to say “I’m here to work. I have presentations at two locations for clients who have retained my services.”
    The first one gets you waved straight through, possibly with a massage (but no happy ending). The second gets you interrogated (or worse) and then put on the next plane heading home, with your dignity stuck somewhere in the bottom of your suitcase.
    Don’t feel comfortable with the whole lying thing? What if they search your bags and find the check you were paid? My friend, there is a company who is more than happy to help you there. They are a smugglers best friend. FedEx. Drop your envelope before you leave, with overnight shipping, and it’ll probably be at your house waiting for you before you even get off the plane. And another hint is, ship your luggage. Or at least the luggage you *need*. They’ll ask questions if you don’t have at least a bag. But if they decide to seize your laptop and luggage because of an undefined suspicion, your *real* laptop and business clothes are on the way to the hotel. Otherwise, you may find yourself without your laptop and favorite toothbrush for 90 days or more.
    You, I, and 99.9999% of the general public (I’m probably still making that number low) are not criminals. We do not deserve to be treated as such. But here in the land of the free, the United States of America, you have no rights to enter or leave unless expressly authorized, and yes, you can be turned around for arbitrary reasons, usually relating to “just because”.

  • http://profile.typepad.com/walterarielrisi Walter Ariel Risi

    Hi Jurgen,
    Very sad to hear that … unfortunately, it does not surprise me at all. I had a presentation accepted at a conference in the US. I asked for my US Visa in FEBRUARY, my interview at the embassy was scheduled by MAY 12th, and my presentation was on May 19th !!
    I scheduled my flight as late as possible, so made my reservation for May 17th. The Visa didn’t arrive by May 16th and the people at DHL told me it wouldn’t arrive the next day either. By May 17th 10 AM I had made my mind that I would miss the conference. By 11 AM that day I received a call asking me to go to the embassy and get the Visa myself so I could make the trip. So we had to take the car, go to the embassy (60KM from home) and then rush to the airport. Finally made it to the conference, but had to go through terrible stress.
    Probably, these rules are very effective for avoiding fraudulent activities to be performed in the US, and there may be good reasons to have them. But many good people looking to do some constructive activities in the US have problems just because of them …
    Regards,
    Walter.

  • Fred K

    It’s always a strange and sometimes frightening experience to interact with immigration law, in the US or elsewhere. I spent years sorting out how to get my wife her green card in the US (I’m a US citizen — no, it’s not automatic, and yes, your spouse will be deported if you don’t do it right). Now we live in France, and even though we own a house and our daughter was born here, we’re still actually long-term visitors. When I still lived in the US, I was allowed to sell software and services to people in France. Now that I live in France, I make sure I only sell things to customers/clients in any *other* country to avoid getting into trouble.

  • Fred K

    BTW; hopefully you & your wife are mostly managing to avoid the racism against Indians that’s all too common in Singapore — I suspect that the two of you may be fine, though if you were both Indian it would be a different story.
    Obviously racism exists in the US as well, but I notice the “race” line on your ID is sparking notice. The many apartment listings that mention “all races okay except Indian” might raise some eyebrows as well.
    I’m curious to see how it goes for you.

  • http://itknowledgeexchange.techtarget.com/software-quality/ Yvette Francino

    So sorry for this experience, Jurgen! Does this mean you won’t be speaking at Agile Development Practices West this week?

  • http://profile.typepad.com/galleman Glen B. Alleman

    Jurgen,
    Sorry to hear about your experience. Having worked in Canada, France, Germany, the UK, Belgium, and Italy, for US and European firms (Honeywell, Elf Aquitaine, and Exxon), I was shocked at first (being naive as well) at the level of paper work needed to simply “visit a refinery” work on the software for a few weeks and return home to California.
    Before the EU wee needed a basket full of paper work just to cross between our Paris office and our Brussels office with our products in the back of the car for a trade show.
    If you’re getting money in exchange for services rendered (speaking or fixing broken software), it’s considered employment everywhere on the planet.
    Those who invited you, should have known better.

  • http://borderfail.blogspot.com BorderFail

    I have tonnes to say on this, but to the comments about “working” the system, that’s a dangerous game because if you get caught, there are serious consequences – including being banned for life from entering the US.
    Consider this recent article from Canada (the “neighbors” of the US) – http://www.vancouversun.com/news/Banished+border/4784413/story.html
    BorderFail