The United States offers arguably the best opportunities in the world for artists and musicians from every country to express their talents, including on stage, on screen, and in recorded performances. However, the U.S. also has some of the toughest immigration laws in the world and many artists struggle with securing the right visa — a temporary authorization to enter the country — to engage in their art on U.S. soil.
Why is a visa even required? Entering the U.S. without proper authorization (such as illegally crossing the border) or without the correct authorization (such as obtaining the wrong visa) or overstaying the length of time authorized by a visa can have severe consequences. Fines, imprisonment, deportation, and indefinite entry bans are all possible penalties for failure to abide by U.S. visa requirements.
Artists and musicians from outside the U.S. often have the following common questions:
Let’s start with good news first. Some artists may not even need a visa to come to the U.S.!
The U.S. immigration system allows people from several countries to visit the U.S. without obtaining a visa. They can instead obtain an ESTA (Electronic System for Travel Authorization) online in less than an hour and visit the U.S. multiple times over a period of two years. Each visit must not exceed 90 consecutive days. “Visit” is the key word here — the artist cannot engage in paid work while in the U.S.
Musicians from countries without the ESTA option will need to obtain a physical visa (think, a full-page passport sticker) from a U.S. embassy or U.S. consulate abroad. The B-1/B-2 visa allows essentially the same thing as an ESTA: engagement in short-term business activities of a commercial or professional nature. However, despite what it sounds like, this type of visa still doesn’t allow the artist to “work” in the U.S. So, what does it allow? A musician could, for example, come to the U.S. under a B visa to record, perform music, or participate in training, so long as the visa holder does not receive any payment from a U.S. entity. A foreign national can apply for a B visa at a U.S. embassy or consulate in their home country, without requiring prior authorization from a U.S. immigration authority.
But what about musicians who want to work and earn money in the U.S.? Now we’re talking about an official work visa, which is very difficult and costly to obtain. To apply for a work visa, a foreign national (or a sponsor/agent/employer) must petition the United States Citizenship and Immigration Services (“USCIS”). If the petition is approved, which can take anywhere from two to nine months, the applicant must then visit a U.S. embassy or consulate abroad and apply for the actual visa, which can also take several weeks or months, depending on the country. The USCIS is very strict with work visa petitions and scrutinizes them closely. Failure to provide the USCIS with the full range of information and documentation required may result in delays or refusal of the visa petition.
A common work visa for musicians is the O-1B visa. Most famously, Justin Bieber (a Canadian national) held this visa for a long time while living and working as an artist in the U.S. The O-1B visa is intended for individuals who have extraordinary ability in their field, which may include the arts. To qualify for an O-1B visa, a musician or artist must be able to demonstrate a high level of distinction and achievement in their art, evidenced by any number of ways, including industry awards, news articles, album sales, high compensation, participation in notable productions and events, and other proof that the musician is recognized as outstanding, well known, or a leader in their discipline. The O-1B visa is also a great way to fast track an artist toward permanent residency (also known as a “green card”), which would allow the artist to live and work permanently in the U.S., but without the full rights of citizenship, such as voting.
What about bands? A P-1B visa may be granted to members of an entertainment group that has been in existence for at least one year and has been internationally recognized as outstanding in their field for an established period of time. The basis of this assessment is the reputation of the group itself, not of the individual members. It is furthermore noteworthy that individual entertainers who perform jointly together but not as members of a group are not eligible for the P-1 visa. Certain entertainment groups may be exempt from the international recognition requirement if they can demonstrate national recognition as outstanding in their field for an extended period of time.
Members of foreign arts organizations that maintain a reciprocal exchange program with a U.S. organization may be eligible for a P-2 visa. At present, the U.S. government has approved reciprocal exchange agreements with the following organizations: The American Federation of Musicians (U.S.) and the American Federation of Musicians (Canada); Actor’s Equity Association (U.S.) and the Canadian Actors’ Equity Association; Actor’s Equity Association (U.S.) and the British Actors’ Equity Association; the International Council of Air Shows and the Canadian Air Show Association; the Alliance of Canadian Cinema Television and Radio Artists (ACTRA) and the Screen Actor Guild – American Federation of Television and Radio Artists (SAG-AFTRA).
A P-3 visa allows artists or entertainers to perform, teach, or coach, either individually or as part of a group, for a limited period of time, as part of a culturally unique program. One requirement for issuance is that the applicant must be coming to the U.S. to develop, interpret, perform, teach, or instruct a unique or traditional musical performance or presentation. Further, it is required that the purpose of the visit to the U.S. is to participate in one or more cultural events that promote the understanding or development of their art form. The program may be commercial or non-commercial in nature.
The H-1B visa category is one of the least desirable visa categories for artists and musicians, as it requires the applicant to hold a U.S. bachelor’s degree or international equivalent. H-1B visas are primarily available to music industry executives, but not so much for performing artists.
The U.S. immigration system is extremely complex and, in many cases, hiring a lawyer who specializes in navigating the various rules and regulations of the USCIS, along with the intricacies of the entertainment industry, will be crucial to obtaining a favorable outcome. An experienced attorney can help visa applicants save time, aggravation, and even money by avoiding mistakes that cause delays, denials, and deportations.
If you have any questions related to U.S. visa requirements for artists and musicians, please contact AGG Immigration & Global Mobility attorney Matt Ohm or AGG Entertainment & Sports co-chair Beth Moore.