Why Foreign Artists Need O and P Visas to Travel to the U.S.

May 8, 2019
B Visas for Artists and Entertainers

B Visas can be an appealing solution for foreign artists to enter the U.S. over the P visa and O visa. However, taking the easy road to enter the U.S. can have long term consequences.

A common misconception is this type of visa is a catch-all for use when a foreign artist:

1) is not eligible for other available visa types; or

2) finds the process to get another type of visa to be too complicated/time-consuming or will take too long for their needed travel dates.

I have heard many stories of artists and entertainers using, or attempting to use B visas to visit the U.S. to perform, tour, show their artwork, or whatever your type of art does to share it with others. There are VERY limited circumstances when artists and entertainers may use a B-visa to enter the U.S. to engage in activities related to their art.

And there can be VERY severe consequences for using a B visa improperly.

GENERAL QUALIFICATIONS:

To qualify for a B visa, you must meet the following 3 criteria:

  1. Maintain a residence abroad, with no intent to abandon it;
  2. Intend to enter the U.S. for a limited period of time; AND
  3. Seek admission for the SOLE PURPOSE to engage in legitimate activities relating to business or pleasure.

These “purposes” are outlined throughout the immigration laws and policy guidance.

AMATEUR v. PROFESSIONAL Foreign Artist

Hypothetical Question: Can I come to the U.S. on a B-2 visa to visit my friends, or go on holiday, and while I’m here, perform a couple of shows?

Answer: It depends. If you are a PROFESSIONAL foreign artist (meaning you normally get paid to perform), then NO. This would not be a legitimate activity when seeking a B-2 visa. If you are an AMATEUR musician (meaning you normally don’t get paid to perform), you may be eligible for a B-2 visa, if you’re not getting paid.

The very generic answer is that under certain, LIMITED CIRCUMSTANCES, a foreign artist or entertainer may be eligible for a B visa, rather than the need to go through more involved processes to obtain another nonimmigrant status, like a P visa.

Let’s look at the situations when it might be okay for an entertainer/artist to use a B-visa to enter the U.S. to engage in artistic purposes.

Amateur Foreign Artists and Tourist Visas.

An entertainer who is normally NOT paid for entertaining is considered an amateur for immigration purposes.

If you are normally compensated for your performances, you are NOT considered an amateur foreign artist under U.S. immigration law.

If you are an amateur (or group of amateurs):

You are likely eligible for a B-2 visa.

Question: What if I am an individual foreign artist and I agree to perform in the U.S. without being paid? Then a B-visa will work, right?

Answer: No. If you NORMALLY get paid for your entertaining, even if you do not make a living doing it, or agree to perform for free in the U.S., you are not considered an “amateur” and will need a P or O visa.

What about B-1/Business Visas for Artists or Entertainers?

U.S. Immigration laws state:

“An exception is made for aliens who may be eligible for B1 business visas provided they meet the criteria of one of the enumerated categories.”  INA 101(a)(15)(B)

“Except for the following cases, B visa status is not appropriate for a member of the entertainment profession (professional entertainer) who seeks to enter the United States temporarily to perform services. Instead, performers should be accorded another appropriate visa classification, which in most cases will be P, regardless of the amount or source of compensation, whether the services will involve public appearance(s), or whether the performance is for charity or U.S. based ethnic society.” 9 FAM 402.2-5(G) (U) Entertainers and Artists

What does the legal mumbo-jumbo mean?

Basically, regardless of your what you will be doing in the U.S. as a performer, if you can be classified as a professional entertainer under U.S. Immigration laws, you will need another type of visa to lawfully enter the U.S.

The definition of "member of the entertainment profession" includes:

  1. performing artists such as stage and movie actors, musicians, singers and dancers
  2. other personnel such as technicians, electricians, make-up specialists,
  3. film crew members coming to the United States to produce films, etc.

9 FAM 402.2-5(G) (U) Entertainers and Artists

Exceptions for Professional Entertainers to Qualify for B-1 Visa

If you are one of these types of entertainers/artists and coming to the U.S. for the outlined reasons, you can do so on a B-1 visa:

Participation in International Competition: if NO payment other than prize (monetary or otherwise) and expenses.

Still Photographers. If the purpose of entry into the U.S. is to take photographs, and as long as no payment is received from a U.S. source.

Cultural Program Participation. If you are coming to the U.S.

  1. To ONLY participate in a cultural program sponsored by the sending country;
  2. Will perform for a non-paying audience; and
  3. All expenses, including per diem will be paid by the member’s government

Musicians:  

  1. Coming to the U.S. to use recording facilities for recording purposes ONLY;
  2. The recording will be distributed and sold outside the U.S.; and
  3. no public performances will be given;

Artists. If you are coming to the U.S. to paint, sculpt, etc. and

  1. Are NOT under contract with a U.S. employer; AND
  2. do not intend to regularly sell such artwork in the U.S.

So what happens if I get a B-visa and do my art and entertaining while in the U.S.?

The current administration is cracking down on all kinds of violations of immigration laws. Where, at one time, an entertainer coming to the U.S.A  to perform at SXSW could maybe squeak in on a B-1/B-2 visa, we have seen in recent years, it doesn’t fly.

If you enter the U.S. on a tourist visa, and then tour the U.S. while you are here, or even play just one or two shows, this could put your chances of returning to the U.S. in jeopardy. If you ever want to seek more permanent residency in the United States, you will likely need to disclose this misrepresentation.

Misrepresentation or fraud to enter the U.S. is a permanent bar from the country, if it can be established.

If you knowingly check “no” where you should have checked “yes” on a petition or other form, or made a statement that you knew was not true as to the activities you would undertake while in the U.S., AND that misrepresentation made a difference in deciding whether to provide you a B-1 or B-2 visa, you could be permanently barred from the U.S.

TRUTH IS YOUR BEST DEFENSE  

Your best defense is the truth. If you tell border patrol what you are doing in the U.S. and they grant you the status you are seeking, you are not “willfully” misrepresenting anything. In fact, that’s not a misrepresentation at all. However, it is highly recommended to enter the U.S. on the proper visa, especially if you wish to visit again.

When in doubt, consult with a U.S. immigration attorney to understand your options and to avoid unintended consequences.

You can use the handy chat feature on the bottom of this website to contact me to help you through the process, or email me now.