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US Visa Options for Artists and Entertainers

By Mo Syed, Offit Kurman
 
The U.S. is a top destination for artists and entertainers (A&E) from around the world. A&E are envoys of their nations and promote the exchange of ideas and traditions that enrich the global community. This article details the various nonimmigrant visas so that A&E and their employers and/or agents can minimize risk related to U.S. immigration laws.
 

O1 Visa for A&E

 
The O1 visa classification is generally available to those who possess “extraordinary ability” in the arts, science, business, education, athletics or those in the motion pictures or television industries who are who are coming to the U.S. to perform for a temporary period.
 
For most applicants, extraordinary ability means “distinction” or a high level of achievement evidenced by a degree of skill and recognition substantially above what is ordinarily encountered. For those in the motion picture or television industry, extraordinary ability means having a record of extraordinary achievement evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent the person is recognized as outstanding, notable or leading in the motion picture and/or television field.
 
Only individual A&E qualify for the O-1, meaning that a group of entertainers or a band for example, will not qualify on a single application. However, individuals who will accompany an O-1 artist or entertainer to assist in a specific event or performance, and whose assistance is ‘essential’ to the completion of the artist’s or entertainer’s performance may seek an O-2. The leader of a band can qualify for the O-1 visa and the rest of the bandmates may be able to come on the O-2 visa.
 
To obtain O-1 visa classification, the U.S. employer of the artist or the entertainer, a U.S. agent, representing either the employer, the artist or both, or a person or entity authorized by the employer as its agent, must file a petition with the United States Citizenship and Immigration Service (USCIS) with the accompanying documents evidencing extraordinary ability in the field.
 
A written advisory opinion from a peer group or labor organization or a person designated by such a group with expertise in the artists or entertainer’s field of ability must also accompany every O-1 petition. If the O-1 petition is for an artist in the motion picture or television industry, then the consultation must come from the labor union and a management organization.
 
Each O-1 petition must also include a copy of a contract between the employer or agent and the artist or a summary of the terms of an oral contract. Contracts with third-party clients may also be required in certain cases. Some petitions will also require the submission of an itinerary with an explanation of the nature of the events or activities the artist or entertainer will be engaging in along with beginning and end dates for the events or activities.
 
Once the visa petition is approved by the USCIS, individual A&E who are applying from outside the U.S. must apply for the O1 visa at an appropriate U.S. embassy or consulate.
 

P1 Visa for Entertainment Groups

 
The P1 visa classification is available to A&E coming to the U.S. temporarily to perform as a member of an entertainment group that has been recognized internationally as outstanding for a sustained and substantial period of time. However, as opposed to the O1 visa classification which is available to individual A&E, the P1 visa classification is intended for those performing as part of a group.
 
Along with A&E, essential support personnel, who are an integral part of the performance of P1 artists or entertainers, and who perform support services which cannot be readily performed by a U.S. worker are also eligible for P-1 classification.
 
To qualify for the P-1 visa, at least 75 percent of the members of the group must have had a substantial and sustained relationship with the group for at least one year. Also, the entertainment group must be internationally recognized, meaning, it must have a high level of achievement evidenced by a degree of skill and recognition substantially above what is ordinarily encountered. The reputation of the group, not the individual achievements of its members, must be internationally recognized.
 
To obtain a P1 artist visa or entertainer visa, the U.S. employer of the entertainment group or its U.S. agent must file a P1 petition with the USCIS, along with a consultation from an appropriate labor organization regarding the nature of the performance, or a statement proving that the group has been established and performing regularly for a period of at least one year.
 
NOTE: If no appropriate labor organization exists, this requirement is excused.
 
The petition must also include a contract between the employer/agent and the entertainment group/individuals and an itinerary of the events.
 
Once approved by the USCIS, members of the group may apply for the P1 visa at an appropriate U.S. embassy or consulate.
 
Admission
 
P1 entertainment groups may be admitted to the U.S. for the time needed to complete the event, competition or performance, not to exceed one year, initially. Extensions of stay may be granted in increments of up to one year to continue or complete the event, competition or performance.
 

P2 Visa for A&E Participating in a Reciprocal Exchange Program

 
The P2 visa classification is available to A&E coming temporarily to the U.S. to perform, either individually or as part of a group, under a reciprocal exchange program between organizations in the rU.S. and another country. Essential support personnel who are an integral part of the performance of a P2 A&E, and who perform support services that cannot be readily performed by a U.S. worker are also eligible for P2 classification.
 
To qualify, the A&E must be entering the U.S. through a government recognized reciprocal exchange program. In addition, he or she must possess skills comparable to those of the U.S. A&E taking part in the program outside the country.
 
A&Ethe sponsoring U.S. organization or employer must file a P2 petition with the USCIS, along with a written consultation from an appropriate labor organization. Evidence that the organization in the U.S. was involved in negotiating, or has concurred with the reciprocal exchange of U.S. and foreign A&E must be submitted. The petition should also include the itinerary of event(s). 
 
Once approved by the USCIS, A&E may apply for the P2 visa at an appropriate U.S. embassy or consulate.
 

P3 Visa for A&E Performing Under a Culturally Unique Program

 
The P3 visa classification is available to A&E coming temporarily to the U.S. to perform, teach or coach, either individually or as part of a group, under a program that is culturally unique. Essential support personnel who are an integral part of the performance of a P3 A&Eand who perform support services that cannot be readily performed by a U.S. worker are also eligible for P3 classification.
 
To qualify for the P3 visa the A&E must be coming to the U.S. for the purpose of developing, interpreting, representing, coaching or teaching a unique or traditional ethnic, folk, cultural, musical, theatrical or artistic performance or presentation. In addition, he or she must be coming to the U.S.to participate in a cultural event or events, which will further the understanding or development of his or her art form.
 
To obtain a P3 visa from USCIS, the U.S. employer or the sponsoring organization must file a petition and a written consultation from an appropriate labor organization, and either, affidavits, testimonials or letters from recognized experts attesting to the authenticity of the individual’s or group’s skills in performing, presenting, coaching or teaching the unique and traditional art forms; or documentation that establishes that the individual’s or group’s performance is culturally unique, as evidenced by reviews in newspapers, journals or other published materials. Also, if the events or performances will take place in multiple areas, an itinerary, listing the dates and locations of the events, must be submitted.
 
Once approved, A&E may apply for the P3 visa at an appropriate U.S. embassy or consulate.
 

P4 Visa for Dependents Of P1, P2, P3 Visa Holders

 
The spouse and children under the age of 21 of P1, P2 and P3 visa holders may be eligible to apply for a P4 nonimmigrant visa. Dependents with P4 visas may not work in the U.S. but may engage in full or part-time study.
 

B1 Business Visitor Visa for A&E

 
In limited situations, the B1 Business Visitor visa may serve as an appropriate U.S. visa for A&E to come to the U.S. temporarily. The main advantage is that, unlike the O and P visas, no prior approval of a petition from USCIS is required, meaning lesser processing time and costs for the applicants and no requirement of . a U.S. employer or agent.
 
However, the B1 visa is generally not appropriate for professional A&E who seek to enter the U.S. to temporarily perform services except in a limited and narrow range of circumstances including:
 
  1. Participation only in a cultural program sponsored by the sending country, before a nonpaying audience and all of expenses are paid by the sending government.
  2. Participation in a competition for which there is no remuneration other than a prize and expenses.
  3. Musicians utilizing recording facilities for recording purposes only, and the recording will be distributed and sold only outside the United States and no public performances will be given.
  4. Artist painting, sculpting, etc., who are  not under contract with a U.S. employer, and who do not intend to regularly sell such art-work in the U.S. 
 
NOTE: As a general rule, A&E on a B1 visa may not receive a salary from a U.S. source for his or her activities in the country. A U.S. source, however, may provide him or her with an expense allowance or reimbursement for expenses incidental to the temporary stay, which may not exceed the actual reasonable expenses he or she will incur in traveling to and from the event, together with living expenses he or she reasonably can be expected to incur.
 
Visa Waiver Program
 
A&E who are citizens of countries that are designated under the Visa Waiver Program may come to the U.S. as a Business Visitor under the program. Visa Waiver entrants are subject to the same restrictions as B1/B2 Visa holders. However, entries are limited to no more than 90 days and entrants cannot apply to extend their stay.
 

B2 Tourist Visa for Amateur A&E

 
Amateur A&E, or entertainment groups, who will not be paid for performances and will perform in a social and/or charitable context or as a competitor in a talent show or contest, may be eligible to seek a B2 visa, even if the incidental expenses associated with the visit are reimbursed. A B2 Tourist visa, like the B1 Business visa, is a visitor visa and does not require prior approval of a petition by USCIS before filing the application.
 
NOTE:
 
  1. An amateur is someone who normally performs without remuneration (other than an allotment for expenses).
  2. A performer who is normally compensated for performing cannot qualify for a B2 visa even if the performer does not make a living at performing, or agrees to perform in the United States without compensation.
 
Admission and Dependents
 
On a B2 visa, amateur A&E are generally admitted for a period of not more than six months. Extensions of stay may be granted in increments of not more than six months each. However, as a practical matter, B2 amateur A&E may be admitted only for the period necessary for them to perform in the U.S. Also, unlike the O and P visas, the spouse and children of B2 A&E are not eligible to seek a “dependent” visa. Instead, they would have to individually qualify for their own B2 visitor visa.
 
Visa Waiver Program
 
A&E who are citizens of countries that are designated under the Visa Waiver Program may come to the U.S. as a B2 Visitor under the program. Visa Waiver entrants are subject to the same restrictions as B1/B2 Visa holders. However, entries are limited to no more than 90 days and  cannot apply to extend their stay.
 

Conclusion

 
A&E who want to come to the U.S. to perform or exhibit their have a range of visa options to choose from. The key is to choose the best option that matches their talents and purpose of trip.

Mohammad Ali Syed

Mohammad Ali Syed

GGI member firm
Offit Kurman, Attorneys at Law
Advisory, Corporate Finance, Fiduciary and Estate Planning, Law Firm Services
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Offit Kurman is a full-service law firm that serves dynamic businesses, individuals and families. With 16 offices and nearly 250 lawyers, Offit Kurman provides innovative and entrepreneurial counsel that focuses on clients’ business objectives across more than 30 areas of practice.

Mohammad Ali Syed (Mo)is a Principal with Offit Kurman in the Washington, DC, metro area, where he is head of the firm’s Immigration Practice. He has broad experience in business, employment, and investment-based visas and immigration. Mo is former co-chair for the Immigration and Nationality Committee of the ABA International Law Section.
 

Published: Global Mobility Solutions Newsletter, No. 02, Autumn 2022 l Photo: gnepphoto - stock.adobe.com

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