November 18th, 2013
With CMJ now finished in New York and bands starting to plan for SXSW and spring tours, I’ve been receiving a number of questions about what visas are required for touring in the US. To answer these questions, it’s always best to consult with an experienced immigration attorney, who can help you work through the complications of getting a visa.
In this article, I interview immigration attorney Elizaveta (Lisa) Eisenberg about immigration basics as they apply to musicians and performing artists.
JNS: Hi Lisa! Thank you so much for being a part of this article. Let’s jump right in! When does an international artist (band, musician, etc) need a work visa (i.e., non-tourist visa) to enter the US?
LE: Basically any time a professional musician or band plans to perform in the U.S., even if they perform for free or receive payment outside the U.S, they will need a work visa. Performing in the U.S. on a tourist visa or a visa waiver program will be considered an unauthorized employment and may bring about dire consequences, including removal and subsequent bars to re-entry to the U.S. Past violations may also come back to haunt when a musician later applies for a proper work visa or a green card.
There are a few very narrow and very rare exceptions to this general rule. Artists can use so-called “tourist” visas (B-1/B-2) or the visa waiver program to perform in certain free cultural programs sponsored by a sending country’s government, to participate in competitions, or to use recording facilities in the U.S. (provided that the records will be distributed only outside the U.S. and that no public performances will be given). They will be considered “Visitors for Business” (B-1). In addition, amateur performers, i.e., those who normally perform without remuneration and who come to the U.S. to perform without remuneration in a social event, a charitable program or a talent show, do not need work visas. They are treated as “Visitors for Pleasure” (B-2). If these narrow exceptions do not apply, a musician will need a work visa to perform in the U.S.
JNS: What types of visas are available for international artists looking to work, tour, record, etc., in the United States?
LE: Work visas for artists usually fall within two broad categories: O visas and P visas.
O visas are for individual artists of extraordinary ability. These visas require very careful preparation. Most artists have to collect extensive evidence, including past awards, performances in prestigious venues, publications in media and other evidence of critical acclaim, proof of recordings, and testimonials from experts in their field of endeavor. O visas are initially issued for up to three years, and further extensions may be available. Unfortunately, individual artists coming for a brief tour may still face the hassle and expense of proving their extraordinary ability and obtaining an O visa, unless they fit into one of the P visa categories described below.
P-1B visas are for internationally recognized entertainment groups. This visa is not available for individual performers and is most frequently used for foreign groups touring in the U.S. However, based on a policy memorandum issued by USCIS in December of 2011, it is now available to individual foreign artists coming to join U.S.-based entertainment groups. Both U.S. and foreign groups have to satisfy all P-1B requirements: they have to provide extensive evidence of international recognition under the specific regulatory criteria, and also prove that the group has been performing for at least one year and that 75 per cent of current members have been performing with it for at least one year.
P-3 classification is for individual artists and groups whose performance or presentation is culturally unique. People who come to teach or coach a culturally unique form of art may also be eligible.
P visa petitions also require extensive documentation of international recognition or cultural uniqueness, but they tend to be less document-heavy in comparison to O visas. Other less common types of visas include P-2 “reciprocal exchange” visas for Canadian musicians and Q visas for participants of international cultural exchange programs.
O-1, P-1B and P-3 classifications also allow for bringing from abroad essential support personnel whose functions are integral to the performance and cannot be performed by U.S. workers. These may include other performers (e.g., an accompanist for an O-1 singer) or non-performers (e.g., technical crew members, a voice coach, etc.) O and P visa holders can also bring to the U.S. their spouses and children under 21 years of age.
JNS: What is the process of obtaining those visas? How much time should the artist allow to acquire it?
LE: The process is multi-step. First, a U.S. petitioner must prepare and file a petition with U.S.C.I.S. The petitioner could be a direct employer (e.g., an orchestra or an ensemble) or an agent (e.g., a manager, booking agent presenter, or another person with a legitimate interest in the project). There are special evidentiary rules for petitions filed by agents that are outside the scope of this interview. Collecting extensive evidence in support of an O and P visa and obtaining testimonials from experts usually takes a while. All documentation not in English has to be translated. In my experience, preparing a solid submission may take about one month or more. When the petition is ready, it has to be submitted to an appropriate labor or peer organization for an advisory opinion (e.g., American Federation of Musicians). This usually takes about a week to process and often requires an additional fee. After that, the petition can be submitted to the U.S.C.I.S. The official processing time for O and P visas is 14 days but in my experience, four to six weeks processing is not unusual. For urgent cases, it is advisable to use premium processing which guarantees that the case be reviewed within 15 days. The review may result in an approval or in a Request for Evidence (RFE) if USCIS finds the submission deficient. After receiving and reviewing the response to the RFE, USCIS will either approve or deny the petition.
After the petition is approved by USCIS, the musician or the group can make an appointment at the U.S. consulate abroad and receive their visas. Wait times for the appointments and visa issuance procedures vary from one consulate to another. It is recommended to check the consulate’s website and place necessary inquiries in advance, and to schedule an appointment as early as possible, to allow for possible delays and complications at the consulate. It is important to understand that the approval by USCIS does not guarantee that the visa will be issued. Prior immigration violations (such as a performance on a tourist visa), minor criminal convictions and other issues may result in a visa denial. Also, a person may be denied entry at the border even if he or she is in possession of a valid visa. It is not very common but possible, especially if the person says something that contradicts the intended purpose of the visa (e.g., a P-1B visa holder saying that she will perform solo). Foreigners who are in the U.S. in another valid status can in most cases change their status to O or P without leaving the country.
In general, it is recommended to start the preparation about six months before the intended start date of the engagement. This allows enough time to carefully prepare a voluminous submission and avoid paying a premium processing fee to USCIS.
JNS: Is an attorney required to get the visa? If not required, how can an attorney help with the visa process?
LE: Technically, hiring an immigration attorney is not required. However, the visa process in general, and especially getting O and P visas, is complex, counterintuitive and filled with traps for the unwary. Clearly qualified foreign artists are sometimes denied visas because their petitions are not prepared with proper level of care, or simply because the preparer is not familiar with USCIS and consular practices. Sometimes a small inconsistency, or even a simple typo, may result in a delay or a denial.
An experienced attorney will help you gather and select the evidence that the USCIS will consider the most convincing. The attorney will also do additional research about the musician’s background and collect extensive supporting evidence demonstrating the significance of his or her awards, publications, recordings, prestigious nature of venues where the client performed, etc. These background materials are essential because we can never presume that a USCIS adjudicator has any knowledge of the petition’s subject matter, such as classical music. Each element of the petition, including achievements and accolades that seem self-evident, such as a Grammy award or a performance at Carnegie Hall, has to be well documented and correlated to a specific regulatory criterion. In addition, adjudicators have very limited time to review each petition and, therefore, the submissions have to be very well organized. If an adjudicator gets confused, he will simply issue an RFE, which will cause a significant delay and may ultimately derail the process. In addition, the attorney will work with experts and ensure that their testimonials serve the purpose in the best possible way.
Most importantly, there are certain aspects of the visa process that have been affected by changing policies. Knowledge of these nuances is absolutely essential in ensuring the smooth processing of your petition.
In a P or O visa context, the success of a performance, or an entire tour, often hinges on the timely receipt of a visa by a foreign musician or a group. In such circumstance, it is only wise to engage a knowledgeable attorney who will help avoid many pitfalls involved in the USCIS and consular processing.
JNS: What are the average costs of a visa?
LE: USCIS filing fee is currently $325 and a discretionary premium processing fee is $1,225. Other expenses include a fee for an advisory opinion, which varies depending on an organization, consular visa fees, legal fees for attorney services, and some ancillary expenses including translations, courier shipping, etc.
Thank you again for the interview, Lisa!
Elizaveta (Lisa) Eisenberg, Esq. practices immigration law exclusively. The main focus of her practice is on “extraordinary ability” matters for artists and on immigration options for startups, entrepreneurs, investors and small businesses. Lisa’s areas of expertise include various work visas and “green cards” based on employment in the U.S. She is also an Assistant Adjunct Professor at the City University of New York, where she teaches a course on Business Immigration as part of the Immigration Law Certificate program. In addition, Lisa has presented Continuing Legal Education courses on immigration-related topics. She is a member of the American Immigration Lawyers Association (AILA). Before law school, Lisa worked as an architect and interior designer and participated in projects which received prestigious awards and were published in Architectural Record. www.LisaESQ.com