ESTAs, B Visas and Showcasing

Can musicians perform in the U.S. under an ESTA/Visa Waiver or on a B-1 “Visitor Visa”?

Probably not. The rule is that everyone always needs a work visa (P or O) to perform in the US There are several very narrow exceptions to this rule, including “the showcase exception”: if you are officially invited to perform at a recognised music industry showcase event, and the principal purpose that the audience is in attendance is not for the sake of being entertained, but for the sake of considering future business engagements with you, the argument can be made that a P or O visa is not necessary, and ESTA/Visa Waiver or a B-1 visa is sufficient.

Which is better: ESTA/Visa Waiver is or B-1 visa ?

It is very important to understand that using the “showcase exception” loophole is always risky. If you choose to enter the US on ESTA/Visa Waiver, you are betting that the Customs Border Patrol (CBP) officer who inspects you at the port of entry will (a) understand the exception and (b) agree that it applies to your situation. If they do not understand the exception (not common but it happens) or determines that it does not apply to you (not common but it happens) you will be on the next flight home.

For this reason, the MU historically did not recommend traveling to the US on ESTA/Visa Waiver for any activities that may even resemble employment; prior to the COVID-19 pandemic, we recommended that artists seek B-1 visas from the local US consulate for showcases or recording sessions. However, due to current significant delays related to the U.S. embassy in London and US Consulate in Belfast, the M.U.’s immigration counsel, Tamizdat, recommends that artists planning to use the showcase or recording exception use ESTA/Visa Waiver, at least until the current processing delays are reduced.

What is the ‘Showcase Exception’?

Broadly speaking, in all but a handful of very narrow exceptional circumstances, any performer needs an employment-based visa (usually a P or O visa) to be allowed to enter the US to perform. The most commonly used— and commonly misunderstood—of these exceptional circumstances arises from what is commonly referred to as “The Showcase Exception”.

In fact, US law makes no reference to a “showcase exception” but the existence of the exception is widely accepted as an interpretation of one passage from the Foreign Affairs Manual:

9 FAM 402.2-5(B) ALIENS TRAVELING TO UNITED STATES TO ENGAGE IN COMMERCIAL TRANSACTIONS, NEGOTIATIONS, CONSULTATIONS, CONFERENCES, ETC: Aliens should be classified B-1 visitors for business, if otherwise eligible, if they are traveling to the United States to… (e)ngage in commercial transactions, which do not involve gainful employment in the United States (such as a merchant who takes orders for goods manufactured abroad) The comment about a merchant taking orders is a reference to a 1966 case, “Matter of Hira,” where a the government made distinction between “employment,” for which one must have an employment visa, and “seeking employment” for which one may be admitted as a visitor (B-1/B2 visa or ESTA/Visa Waiver). 

The exception is generally seen as applicable to the performing arts if an artist’s activities in the US involve displaying his or her talents as a performing artist pursuant to securing future engagements, and he or she is performing an unpaid showcasing of his or her skills that include composition, practice and performances, all developed overseas. The easiest way to think about this is that if the principal purpose that the audience is in attendance is not to be entertained, but to consider hiring the artist in the future, then the event may be a ”bona fide showcase” and an employment-based visa is not required.

The danger with the “Showcase Exception” is that whether or not an artist’s activities fall within the exception is up to the subjective determination of consular officers at the embassies (if the artist is seeking a B-1/B2 visa) or the CBP Officer (if the artist is seeking to enter on ESTA/Visa Waiver), so it is always possible that what you think is clearly a bonafide industry showcase might not so clearly qualify in the opinion of the officer.

Musicians travelling to the SXSW 2023

International industry professionals and musicians have a lot of questions about the legalities of entering the U.S. This FAQ (which can also be viewed on the Tamizdat site) will help answer some of those questions. Please keep in mind, however, that this is intended as general guidance, and not legal advice. Legal advice can only be given specific to the facts of an individual’s real-life situation, so if you have a question, please contact Tamizdat’s Artist Visa Assistance & Information Line for pro bono legal assistance.

Do I need to be fully vaccinated to travel to the U.S.?

At the present time yes, with very few exceptions. For more information visit the Centers for Disease Control and Prevention. 

Do I need to take a COVID test before I travel to the U.S.?

On the 12 June 2022 the Centers for Disease Contol affirmed that ‘all air passengers, regardless of citizenship or vaccination status, are no longer required to show a negative viral COVID-19 test result, or documentation of recovery from COVID-19, before boarding a flight to the United States.’ For more information visit the Centers for Disease Control and Prevention. 

I am an international artist. Do I need a visa to perform at the SXSW Music Festival if my only performances in the U.S. are official SXSW showcases?

The U.S. government's position is that if an artist is coming to the U.S., and the only performances they will do are official SXSW music showcases, then a B-1 visa is the appropriate visa classification¹. Furthermore, if an artist is eligible to travel under the Visa Waiver Program and the artist is only performing at official SXSW showcases, ESTA is also sufficient. In the past, SXSW and many international arts organizations have recommended that if an artist has a choice between a B-1 visa and ESTA, they should choose the B-1 because it has the potential to help the artist avoid logistical problems associated with ESTA. However, given ongoing issues at many U.S. embassies and consulates around the world related to COVID-19 and other issues, obtaining a B-1 visa may not be possible in time for SXSW, in which case artists should feel reasonably confident traveling to SXSW on ESTA, provided you carry the official SXSW invitation, and (again) you are ONLY performing official SXSW showcases.

A note for Canadians: Although Canadians typically are not required to have visas to enter the U.S., they are subject to similar rules: if you are only performing at official SXSW showcases, you probably do not need to seek a special employment classification prior to entering the U.S.

I am an international artist. Do I need a visa to perform at the SXSW Music Festival if I will be doing performances in the U.S. in addition to official SXSW showcases?

If you plan to perform at other events in the U.S. in addition to your official SXSW showcases, you will likely need an O or P employment visa. Getting O or P visas is a complex and expensive process. For more information about O and P visas, please visit the site Artists From Abroad.

A note for Canadians: Although Canadians typically are not required to have visas to enter the U.S., they are subject to similar rules: if you are performing anything other than official SXSW showcases, you probably need to seek a special employment classification prior to entering the U.S.

I am an international artist. If I am only performing at official showcases at SXSW but I am not eligible for the Visa Waiver Program ("ESTA"), do I have to get a B-1 visa?

If you are not eligible for the Visa Waiver Program (“ESTA”) you’ll need to have a U.S. visa to enter the country. A B-1 visa is the easiest visa to get that is sufficient for performing at official SXSW showcases. (Remember: If you plan to do other performances in the U.S. — even if they are unpaid— you’ll probably need to get an O or P visa).

I am an international artist. If I am only performing at official showcases at SXSW and I am eligible for the Visa Waiver Program ("ESTA"), do I have to get a B-1 visa?

If you are eligible for the Visa Waiver Program (“ESTA”), then a B-1 visa is not required. In the past, having a B-1 has been recommended because it shows the U.S. officials at passport control that your reason for travel has already been reviewed and approved by an official at a U.S. embassy or consulate, which can minimize the risk of a misunderstanding on your arrival. However, given current and ongoing capacity issues at many U.S. embassies and consulates around the world, obtaining a B-1 visa may not be possible in time for SXSW, in which case artists should feel reasonably confident traveling to SXSW on ESTA, provided you carry the official SXSW invitation, and (again) you are ONLY performing official SXSW showcases.

I am an international artist. May I do unpaid unofficial performances on ESTA?

No. Under U.S. law, musicians almost always need employment-based visas to perform unpaid performances that are not official showcase performances. (There are very few exceptions to this rule.) Not getting paid does not obviate the requirement for an employment visa.

I am an international artist. Will the U.S. government know if I do performances other than official SXSW showcases on ESTA?

They could. They have access to public information as well as many government records, so it is unwise to assume that passport control officers will not notice if you have scheduled performances that do not conform to the ESTA requirements.

As an international artist, how do I know if my scheduled performances are official?

Ask SXSW. Official SXSW Music Festival Showcases and Artists will be listed on the official SXSW website. If you are unsure whether an event is official or not, contact SXSW at musicfest@sxsw.com. Be sure to confirm that your name is on the official SXSW showcase list well before you travel. 

I am an international artist. When should I apply for an ESTA?

If you are planning to travel under the Visa Waiver Program (ESTA), you should apply using the U.S. government website as soon as possible. Applying for ESTA can be completed as quickly as a few minutes, but it’s best to be prepared for a delay. And if for some reason (or no reason) you are denied ESTA, you’ll want to have at least two or three months to make sure you can get a B1 visa.

I am an international artist. When should I start the visa process for B-1?

Currently it is very difficult to obtain a B-1 visa to the U.S. You should start the process immediately by checking the website of your local U.S. embassy or consulate. It could easily take two or three months to secure a B1 visa.

I am an international artist. When should I start the visa process for an O or P?

If you are applying for an O or P visa, you must first have a petition approved by USCIS. Petition approval may take as long as 180 days. After the petition is approved, you will need to apply for a visa, and U.S. embassies and consulates around the world have very different processing times. As a rule, you should be starting the process six months before your planned travel date if you want to avoid unnecessary hassle and expense.

I am a member of the music industry. Do I need an employment visa to attend SXSW?

Probably not. Foreign nationals are generally allowed to attend a conference as a “visitor.”² This means if you are eligible to enter the U.S. under the Visa Waiver Program (“ESTA”) that is sufficient. If you are not eligible to enter the U.S. under the Visa Waiver Program (“ESTA”), you will probably need a B-1 or B-2 visa.

I will be presenting a panel at SXSW. Do I need a visa to attend SXSW?

Probably not. Foreign nationals are generally allowed to present at professional conferences in “visitor” status, provided they receive no remuneration from a U.S. source other than that which covers reasonable expenses.³ This means that if you are eligible to enter the U.S. under the Visa Waiver Program (“ESTA”) that is sufficient. If you are not eligible to enter the U.S. under the Visa Waiver Program (“ESTA”), you will probably need a B-1 visa.

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¹ See AILA/Department of State Liaison Meeting, October 19, 2017 and Matter of Hira

² See 9 FAM 402.2-5(B)

³ See 9 FAM 402.2-5(B) and 9 FAM 402.2-5(F)(1)