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.

Are you travelling to the SXSW festival in Austin, Texas? 

Read our guidance on requirements for international travel to the SXSW festival.