ESTAs, B Visas and Showcasing

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 4 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.