Q: WHAT VISA CAN I GO FOR?
A: The ONLY classifications for performing artists are O (individuals) and P (groups of 2 or more).
Q: WHAT ARE FORMS I-129 OR I-797 – WHO IS BENIFICIARY?
A: There is a set of terminology that one should be familiar with at the outset.
download USCIS Terminology
Q: WHAT VISAS ARE AVAILABLE FOR ARTISTS and HOW IS ELIGIBILITY DETERMINED?
A: The only classifications for performing artists are O (individuals) and P (groups 2+)
Corresponding classifications for support personnel are O-2 and P-1S.Generally speaking, an artist documents his/her classification with extensive press materials and support documentation together with additional testimonials and letters of support if necessary. This becomes trickier with unknown artists and debut U.S. tours.
download USCIS Visa Classifications / Criteria
Q: HOW LONG DOES THE PROCESS TAKE?
A: The best rule of thumb is to choose and contact your petitioner as soon as USA dates are evident. Don’t underestimate the preparation time your petitioner requires or that you yourself will require in providing your petitioner with what they need.
Once required materials are gathered and petition(s) created the petition(s) are submitted to the appropriate labor union(s) for the required labor union consultation letter(s). The labor unions take 7-10 days to provide their letter, though some have an expedite service with turn-around time of 2-3 days.
Following receipt of union letter(s) the petition(s) are submitted to USCIS.
There are 2 services offered: Regular Processing Service and Premium Processing Service (PPS).
Of late, with Regular Processing USCIS has been adjudicating petitions in 30-50 days, however, this is by no means a bench mark.
With Premium Processing (additional USCIS fee of $1410.oo per petition) USCIS must adjudicate in 15 calendar days.
NOTE: adjudication means either a) Approval, b) Request for Further Evidence (RFE) or c) Denial. It is always best to have a safety net of a 1 month in case an RFE is received. There is no fighting a denial – one reapplies.
Following receipt of the I-797 Approval Notice that petitioner obtains, unless a Canadian citizen, beneficiary then has the consulate procedure for visa to be issued into the beneficiary’s passport. Consulate time varies from 5-10 days.
It occurs too often that an artist/company lets slip this last step in the process and find themselves on tour or otherwise unavailable for the Consulate procedure. Note: the designated consulate need not be in the country where the beneficiary resides. Hence, at the outset of the visa process determine at what Consulate(s) you will apply for the visa following receipt of I-797 Approval Notice and determine your window for the interview(s)
Q: WHAT DOES IT COST?
Q: WHAT IS THE LABOR CONSULTATION?
A: Prior to sending the petition to USCIS, one must obtain a labor consultation from the appropriate U.S. union(s). These include: American Federation of Musicians (AFM), American Guild of Musical Artists (AGMA), American Guild of Variety Artists (AGVA), Actor’s Equity (AE), Stage Directors and Choreographers Society (SDC), International Alliance of Theatrical Employees (IATSE)......
For the most part, the contents of the petition for labor union(s) is the same as for USCIS. Do not play with job titles to avoid a second or third union. Where there is no appropriate union, a declaration is included within the petition citing the statute that waives the union consultation in such cases and/or include letters from peer groups / organizations. There may be instances where personnel fall into both performer and support categories – choose which is the primary responsibility and go with the appropriate union.
Q: CAN I PERFORM AT A CONFERENCE WITHOUT A VISA?
A: There is a very narrow exception whereby artists performing at a "legitimate" booking conference or audition are legally eligible to do so in ESTA status (or with only a B-1/B-2 visa if they are not eligible for ESTA), provided the booking conference or audition is (a) closed to the public (which means the performance is restricted to producers, promoters, agents, mangers, or people who may actually engage the artists); (b) no tickets are sold; (c) no fees are paid to the artist (other than actual, itemized expenses); (d) and the artist does not intend to perform anywhere else or under any other circumstances whilst in the U.S.
NOTE: The ONLY classifications for performing artists are O (individuals) and P (groups of 2 or more).
Artists cannot perform in the U.S. with only a B-1/B-2 visa or in ESTA status regardless of whether or not the artist earns a fee, tickets are sold, the performance is to benefit orphans and widows, etc. Artists who enter either with a B-1/B-2 visa or in ESTA status entry are considered "visitors/tourists".
If caught at the border entering with a B-1/B-2 visa or ESTA for the purposes of public performances, unless you get a CBP officer that is either ignorant of the statutes (not likely) or you actually have a case for your B1/B2 or ESTA you will be denied entry and put on the next flight back and barred from the US for a minimum of 5 years and a 6 month wait thereafter in applying for a visa – may even get to spend 48 hours in a jail at the airport – oh what fun! Note that CBP officers are very savvy when it comes to quickly googling someone’s name and lo and behold state: “I see you are performing at The Crossroads tomorrow night”.
So, if attempting to legally enter with a B1/B2, ESTA for a legitimate booking conference or audition, be prepared to argue legal nuances whilst standing in a crowded immigration hall.
Q: WHAT PROMOTIONAL / MEDIA MATERIAL WILL I NEED TO SUPPLY?
A: This is the most important aspect of the petition. With the press materials one must demonstrate the artist’s “extraordinary ability and international reputation in their field of endeavor” and “sustained acclaim in his/her field of endeavor”. While documenting extraordinary ability is varied and broad, USCIS has a list of criteria by which it defines extraordinary ability, and your petitioner should be well versed in what materials will be required to support a particular beneficiary and classification. In simple terms, one must document that the artist is nationally and internationally known by their tours, the fees they command, the venues/festivals they’ve performed in and will perform in, recordings, critical acclaim, commercial successes, international awards (GRAMMY, Oscar, major competitions), testimonials and letters of support from presenters, peers, arts and government organizations and the like. For young, emerging artists it can be an arduous task involving a multitude of support documentation. Even for an established artist a “visa press package” can run 35-45 pages, much of it documentation that one would not normally consider part of an artist’s press package.
While the artist/company’s accomplishments and international stature may be well documented in formal biography, unfortunately, USCIS officers do not take formal biographies at face value. So, rule of thumb is to throw everything at them, including the kitchen sink. The criteria for P is a little less stringent than for an O.
Q: DO I NEED TO HAVE CONFIRMED PERFORMANCES BEFORE GOING FOR A VISA?
A: Yes, however, if applying for an extended period, while signed performance contracts or deal memos are required for the first set of performances, letters of intent are acceptable further down the line. These can state simply a requested time period and fee range with negotiations ongoing. If carefully documented and organized, email communications with presenters can also be acceptable. The point is to demonstrate there is firm, documented interest in hiring the artist.
Q: IS AN ITINERARY REQUIRED?
A: The only instance where an itinerary of the artist’s USA performances is not required is if all activities by the artist will take place in one location. This may include activities that are maybe in different locations on a university campus – the campus is considered one location.
If, however, activities are in more than one location, even if for rehearsals, an itinerary is required. When preparing an itinerary every day within the period you are requesting must be accounted for.
If the beneficiary will be departing and re-entering the U.S. during the visa period (in effect a multi-entry visa), non-U.S. days must also be accounted for - be they performances, rehearsals, teaching, holidays, though contracts and specific details not required for non-USA time periods.
For USA activities the itinerary should list:
• activity type – concert, workshop, master class, rehearsal with venue/festival address
• presenter organization name and address
• presenter contact name, phone, email address
With an itinerary it is important to:
• account for every day of the requested period
• be consistent in the entry of information
• demonstrate that the U.S. performances are part of an overall season/yearly tour plan and not the beneficiary’s sole source of revenue – as demonstrated by the non-U.S. activities on itinerary
Petitioner should provide you with a template to work with. One must have contracts, deal memos and/or letters of intent from USA presenters that span the visa time period requested. Gaps between USA performances must not exceed 4.5-5 months for O and 2 months for P.
Q: CAN MY FAMILY TRAVEL WITH ME?
A: The spouse and unmarried children accompanying an O or P performing artist or essential support person may qualify for an O-3 or P-4 visa (depending on the related performer's visa classification). Accompanying dependents must provide evidence of their relationship to the beneficiary at the time of application for the beneficiary’s visa at a U.S. Consulate, port of entry (POE) or pre-flight inspection. One does not include spouse or dependents on the beneficiary’s USCIS Form I-129.
If the spouse/dependent(s) are Canadian citizens, presenting proof of relationship, together with principle beneficiary’s I-797 Approval Notice and valid passport suffices at a port of entry or pre-flight inspection.
If the spouse/dependent(s) are not Canadian citizens, they will use the principle beneficiary’s I-797 Approval Notice to obtain their visas at a U.S. consulate abroad.
The spouse/dependent(s) of an alien with an O or P visa are not allowed to work, unless they file their own I-129 petition. The duration of a dependent’s stay in the U.S. is the same as the primary beneficiary.
Q: HOW DO I START?
A: As soon as a US tour is evident, contact us here.