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Recording Work in the U.S.

Advice on visas for musicians travelling to the United States to do recording work.

Last updated: 07 December 2021

I am heading to the U.S to do some recording. Do I need a work visa?

Maybe. The U.S. has a law that says that if a "musician is coming to the United States in order to utilize recording facilities for recording purposes only," and “the recording will be distributed and sold only outside the United States,” a B1, B2 visa or ESTA is sufficient, so if your recording plans conform to this rule, you’re fine. But obviously there are two major problems with this law:

  1. The law predates the internet, and currently the idea that a recording would "be distributed and sold only outside the United States” is not a concept that is feasible, and
  2. The rule requires artists to predict the future: at the time of recording, many artists do not know what will be done with the recording. If in good faith, you did not think the recording would be sold in the U.S., but subsequent to recording, you are offered a deal for the license of the recording in the US, would agreeing to that deal create a retroactive visa violation? That doesn’t make any sense. 

Because the law is demonstrably unworkable, officers at most US consulates work under a broad interpretation of this rule: if the recording is being made pursuant to a contract (written or oral) with a US entity, an employment based visa (usually O or P) is required; if the recording is being made pursuant to a contract (written or oral) with a foreign entity, a B1 or B2 visa or ESTA is sufficient.

However, it is very important to understand that using the “recording exception” loophole is always risky. If you choose to enter the US on ESTA/Visa Waiver, you are betting that the 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 he or she does 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 B1 visas from the local US consulate for showcases or recording sessions; in the best-case scenario, you’ll get the B1 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.

Disclaimer

This advice 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.

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