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Guidelines for Musicians Using B-1/B-2 Visas or Visa Waiver

I took up bluegrass fiddle a few years ago and like to jam with groups at various venues including pubs, libraries, house parties, music festivals and workshops. I noticed that some festival sponsors have not been able to get their foreign workshop leaders or performers visas on time. Or, sometimes pubs like to host visiting musicians, or need last minute substitutions, sometimes on a lark.  Foreign musicians or their agents are often confused about what visas they need or what the permissible activities are to be able to perform or showcase, record, attend meetings with booking agents or venues, attending conferences and more.  Especially for beginning musicians who may want to get their talents seen by the public, they may want to accept invitations to showcase their performances.  Can they do that, under what circumstances, and when can they get paid? The US State Department’s Foreign Affairs Manual (FAM) provides some guidance. This article focuses on permissible activities using tourist visas or the visa waiver program.

A musician or group coming to showcase a performance may qualify for visitor status using the B-1 or B-2 visa or visa waiver (WT/WB) program (which requires a preliminary ESTA application first), provided they are not paid.  That includes not receiving anything of value in exchange for performing. However, the music must have been developed outside the USA.  Work that was developed abroad and is performed at  music conferences, including composition, practice, and performances will not be deemed “productive work” or “local labor for hire,” provided the US performances or showcases are unpaid. “Showcasing” is like participating in a professional conference, which is a permissible B-1 activity.

The State Department’s Foreign Affairs Manual (or FAM) sets forth specific permissible activities for B-1 visa/ WB visa waiver holders at 9 FAM 402.2-5(B).  The primary point is that a musician or group should have ongoing business in their own country, and they will be coming to the USA for that company or organization abroad. The musician or group will not be able to participate in local productive work or local labor for hire and payment, which requires other types of more specific work visas such as O and P visas. The FAM discusses amateur entertainers, (professional entertainers and artists) and musicians specifically as well as other permissible business visitor activities. The entire link above is worth a read.

The 9 FAM 401.2-(a) (U)(7) specifically references Amateur Entertainers and Athletes:

Amateur Entertainers and Athletes:  A person who is an amateur in an entertainment or athletic activity is, by definition, not a member of any of the profession associated with that activity.  An amateur is someone who normally performs without remuneration (other than an allotment for expenses).  A performer who is normally compensated for performing cannot qualify for a B-2 visa based on this note even if the performer does not make a living at performing, or agrees to perform in the United States without compensation.  Thus, an amateur (or group of amateurs) who will not be paid for performances and will perform in a social and/or charitable context or as a competitor in a talent show, contest, or athletic event is eligible for B-2 classification, even if the incidental expenses associated with the visit are reimbursed.

Elsewhere, the 9 FAM 402.2-5(G)(U) discusses professional entertainers (and artists) specifically:

  • a. (U) Except for the following cases, B visa status is not appropriate for a member of the entertainment profession (professional entertainer) who seeks to enter the United States temporarily to perform services.  Instead, performers should be accorded another appropriate visa classification, which in most cases will be P, regardless of the amount or source of compensation, whether the services will involve public appearance(s), or whether the performance is for charity or U.S. based ethnic society.  (See 9 FAM 402.2-4(A)) above on B-2 visas for amateur performances.)
  • b. (U) The term “member of the entertainment profession” includes not only performing artists such as stage and movie actors, musicians, singers and dancers, but also other personnel such as technicians, electricians, make-up specialists, film crew members coming to the United States to produce films, etc.

And finally, the FAM discusses musicians specifically at 9 FAM 402.2-5(G)(4)(U):

  • (U) An alien musician may be issued a B1 visa, provided:
  • (1)  (U) The musician is coming to the United States in order to utilize recording facilities for recording purposes only;
  • (2)  (U) The recording will be distributed and sold only outside the United States; and
  • (3)  (U) No public performances will be given.

There was a recent liaison meeting between the American Immigration Lawyers Association (AILA) and the US State Department (DOS) back in October 2017 where the DOS indicated that consular posts had been advised that an individual or musical group intending to appear in a showcase performance while in the U.S may qualify for a B-1 visa,  provided that the activity is more like an audition than a public performance before a paying audience, and provided the applicant will not perform in any other capacity outside of the showcasing event. Thus, use of the B-1 or visa waiver program will be for very narrow use.

Musicians individually or in groups tend to run into trouble at a consulate or at the border, especially if they do not consult counsel, agents or industry organizations familiar with immigration rules.  It can be hard to make a distinction  between permissible B-1 activities and  local employment activities requiring a specific work visa.  The leading case on the subject is Matter of Hira (11 I&N Dec. 824 (BIA 1966)). There, the Board of Immigration Appeals set forth the criteria for showing that the intended activity in the U.S. is incidental to work that will principally be performed outside of the U.S. B-1/Visa Waiver visitors must show they :

  1. are engaged in commercial activity;
  2. have a clear intent to maintain a foreign residence;
  3. “the principal place of business and the actual place of eventual accrual of profits, at least predominantly, remains in the foreign country”;
  4. the US stay is/will be temporary in nature, although the business activity may be ongoing; and
  5. the person’s salary comes from abroad.

The US Customs and Border Protection (CBP) makes decisions about admission at the port of entry.  Issuance of a visa by the consulate or embassy does not guarantee admission by CBP. Applicants need to be prepared to explain what they will do, when, where and how in the USA, the purpose of the trip, when/where accrual of income occurs, and to back all of that up with documents to prove the facts claimed.  Examples might be conference registration materials, conference program and schedule, hotel information, a letter from conference organizers confirming an invitation for the applicant to perform without compensation, proof of personal or company abroad funds to cover all travel-related costs, and any other relevant documentation. In addition, bring proof of activities in the home country, sufficient funds to pay for travel costs so that one need not work unlawfully, evidence of the person continuing to be paid abroad, and that there are ties to lure the person back home: family, financial assets, property, job, business, or education. Applicants for a B-1/B-2 visa must overcome the presumption of immigrant intent and be able to show a residence in a foreign country that he or she has no intention of abandoning and that the visa supports the purpose of the travel to the U.S. See section 214(b) of the INA and 9 FAM 402.2-2(B). INA 214(b) is the most common reason a person is denied a B-1/B-2 visas or WT/WB or entry into the USA, which deals with “intending immigrants” planning to stay in the USA permanently. Another common reason for denial of entry is INA 212(a)(7), not having the proper documents for the planned purpose, like work, which may require a labor certification or underlying visa petition.

Musicians and groups that want to be paid for performances at a US venue need the appropriate work visa, typically O or P visas.  These visas have far more extensive requirements.  Therefore, preparation is essential. If you are not sure what status you qualify for, don’t just guess. Seek out legal advice from an experienced immigration lawyer.