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ESTAs, B Visas and Showcasing

Disclaimer: This FAQ should not be relied upon as legal advice, which can be provided only in the course of an attorney-client relationship with reference to all the facts of a specific situation. Any information contained here is not a substitute for obtaining legal advice from a licensed attorney.

Last updated: 07 February 2022

Can I perform in the US 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. 3 

I have heard that ESTA/Visa Waiver is unreliable, but the B-1 visa costs money and requires an interview. Which is better?

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 exceptions and (b) agree that it applies to your situation. If they do not understand the exception (fairly common) or determines that it does not apply to you (also common) you will be on the next flight home. 

For this reason, the MU does not recommend traveling to the US on ESTA/Visa Waiver for any activities that may even resemble employment. We recommend that artists seek B-1 visas from the local US consulate for showcases or recording sessions; in the best-case scenario, you’ll get the B-1 and be much less likely to encounter a problem at the border; in the worst-case scenario, you’ll find out the bad news before you board a plane, and may have time to rectify the situation. It should also be understood that ESTA/Visa Waiver should not be seen as a cost free alternative to a visa. 

If you are denied under an O or P then you cannot work in the US – using an ESTA/Visa Waiver is not a legal option. 

What is the ‘Showcase Exception’?

Most people involved with the performing arts understand that 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 bona fide industry showcase might not so clearly qualify in the opinion of the officer. 

What is the UK Music industry understanding of a US showcase?

In the UK organisations such as British Underground, the MU and PRS foundation define a showcase event as one that is primarily an ‘industry facing’ event where members of the music industry, whose primary reason for attending is to further book you or your band for work in the US. Whilst there may be audience members at the event who are not industry professionals, having an honest audience based reaction is an important aspect of the showcase experience.

New Guidance For Musicians Travelling to SXSW 2022

After two years online, SXSW is scheduled to finally go live and in person in Austin this March. Unsurprisingly, 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 (TamizdatAVAIL) 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.?

At the present time yes, with very few exceptions. 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 US are official SXSW showcases?

The U.S. government has confirmed 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 US 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.)

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 AXSW site. 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 start the visa process for 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.

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.

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.

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.

_________________________

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)

 

Watch the panel discussing SXSW 2022

Watch this panel discussion hosted by PRS Foundation's International Showcase fund to find out all you need to know about the SXSW 2022.

The discussion moderated by Aja Garrod from PRS Foundation features:

  • Matthew Covey - Tamizdat
  • Una Johnston – SXSW
  • Adam Moses – Jazz Refreshed
  • Naomi Pieris – British Underground
  • Becci Scotcher – PRS Foundation
  • Dave Webster – Musicians’ Union

The youtube recording covers all the topics from Visas and access to what to do when your are there, where to stay and how to get the most out of your showcasing opportunity.

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