Posts Tagged ‘waiver’

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Beware of Simple Answers!

Thursday, December 19th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

I work with an artist whose current US visa expires in January 2014, but he has one engagement in the US on March 8, 2014. The promoters are saying that he won’t need to renew his visa and can just use ESTA, however, we were under the impression that he would need a valid US visa. Is this correct?

You are absolutely correct. He will require an O-1 visa.

ESTA stands for “Electronic System for Travel Authorization.” ESTA is an on-line registration system for citizens of countries who participate in the United States Visa Waiver Program (“VWP”). Citizens of VWP countries are not required to visit a US consulate and apply for physical visitor visa (B-1/B-2) to enter the US as visitors. Instead, they are only required to have a valid passport from a VWP country. However, they are required to register on-line through ESTA and be pre-authorized before they can enter the US.

The key, of course, is that the VWP program only allows citizens of VWP countries to enter the US as “visitors.” As such, they can only engage in visitor permitted activities: shopping, sightseeing, business meetings, etc. Under US Immigration Law (frustrating and circuitous though it may be), professional artists who enter the US as visitors are not permitted to engage in ANY public performances–regardless of whether or not an artist is paid, regardless of whether or not tickets are sold, regardless of whether or not the performances is for a benefit or a gala, regardless of whether or not the performance is for a university or non-profit, regardless of whether or not you can afford the visa process, regardless of whether or not the artist lives 100s of miles from the nearest US consulate, regardless of whether or not the artist has previously performed in the US as a visitor, etc, etc.

While artists frequently do sneak in as visitors and perform, this poses far more risk to the artist than to the venue or promoter. If the artist is caught, the worst that happens to the promoter or venue is that the artist can’t enter the US and the concert may have to be cancelled. However, a fraudulent VWP/ESTA entry can result in the artist having his VWP privileges revoked, or worse.

I am currently working with a prominent artist who wanted to take a last minute engagement, didn’t have time to petition for a visa, much less go to the consulate, and decided to enter the US as a visitor. Unfortunately, his concert had been prominently advertised, he was caught by the one of the few border officers who actually follow classical music, and was refused entry. For the next five years, the artist must now formally request a “waiver” anytime he wants to obtain a proper O-1 visa to perform in the US. As you may imagine, this has caused considerable stress to his management because a “waiver” request adds an additional 3 – 4 week delay in processing the artist’s visa. In addition, his VWP privileges were revoked, meaning that he must go through the time and hassle of applying for a formal B-1/B-2 visitor visa even if he legitimately only wants to enter the US as a visitor.

I doubt seriously that the promoter was intentionally giving bad advice. More than likely, the promoter was ill-informed. Which only underscores the responsibility of each of us to take the time to learn and figure out the correct answers for ourselves rather than rely on hearsay or anecdotal information. Whether you’re dealing with visas, taxes, licenses, or liability, if the answer seems too simple, it probably is.

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Hi Everyone! “Law and Disorder: Entertainment Division” will be taking a holiday break. Our next post will be on January 8, 2014. Many thanks for a wonderful year of great questions and challenges. Keep them coming! 

OFFICIAL HOLIDAY WISH CONVEYANCE

From Brian Taylor Goldstein and Robyn Guilliams (collectively, the “Wishor”) to you (“Wishee”):  

Please accept without obligation, implied or implicit, and weather permitting, our non-assignable and non-exclusive best wishes for a sold out, standing room only, royalty abundant, lavishly licensed, critically acclaimed, non-cancelable, infringement free, profusely booked, copiously commissioned, richly funded, tax-exempt, crisis deficient, and artistically inspired celebration of the winter solstice holiday, practiced within the most enjoyable traditions of the religious and/or secular persuasions of your choice, including their choice not to practice any such religious or secular traditions, along with an environmentally conscious, socially responsible, spiritually enlightened, politically correct, low stress, low carb, high HDL, non-addictive, financially successful, personally fulfilling, and medically uncomplicated recognition of the onset of the generally accepted calendar year 2014, but with due respect for the calendars of choice of other cultures or sects, and without regard to the race, creed, color, age, physical ability, religious faith, choice of computer platform or operating system, mental and/or physical incapacities, visa classification period, sexual preferences, political affiliations, and/or dietary preferences of the Wishee.

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For additional information and resources on this and other GG_logo_for-facebooklegal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

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THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

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Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

Visas for Recording Artists

Wednesday, September 25th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

If a foreign singer (who is not a citizen of a country that is eligible for the visa waiver program) gets a record deal in the USA, what kind of visa would they need to apply for? And if the singer is currently living in a different country with a residency permit, can they apply in that country where he or she is living, or would they need to return to their own country to apply for the visa? Thanks.

Thanks. This is an easy one.

To work in the US, which includes entering the US for the purposes of recording an album (regardless of whether or not the singer is paid), the singer would need to apply for an O-1B visa. An O-1B visa is for individual artists of “extraordinary ability.” To obtain the visa, a US-based petitioner (which could be the record label or an appointed agent) would need to prepare and file a visa petition with United States Citizenship and Immigration Services (USCIS). (Naturally, there are fees and costs to file the petition.)

Once the visa petition is approved, USCIS will issue an “approval notice.” The singer will need that to make an appointment at a US Consulate and schedule a visa interview. He or she will need to complete an on-line application form and pay a visa application fee. However, the singer can go to any US Consulate in the world that is convenient for him or her. He or she does not have to return to their home country or even use the consulate in the country where they are a living. Any consulate in any country with a US flag outside will work. (Just make sure it’s a consulate that issues visas—not all do.) Assuming there are no problems with the background check, and assuming the singer is not from a country the US doesn’t like (which, sadly, is a larger list than you may think), the visa should be issued in 3 or 4 days.

There is a rare exception you should be aware of which may or may not be applicable. An artist is not required to have an artist visa to enter the US for the sole purpose of using a recording studio to record an album that will not be sold or distributed in the US, and provided there will be no public performances or concerts. If this applies, an artist only needs to have a visitor visa (unless they are citizen of a visa waiver country, in which case, they will only need their passport to enter as a visitor for up to 90-days.)

Remember, everything you could possibly want to know about visa and tax issues for foreign artists wishing to perform in the US, including things you didn’t even know you needed to know, can be found on: www.artistsfromabroad.org

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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

Showcasing: A Rare Visa Exception

Wednesday, August 28th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder

Do non-US artists need artist visas when they come in to perform a showcase at a booking conference? They don’t get paid. Its just to get bookings. In fact, the artists lose money doing this. Can they enter on a tourist visa or do they have to spend even more money and go through the process of getting an artist visa?

Its rare that someone asks us an immigration question where they actually might like the answer…this may be one of those instances.

However, its first always worth remembering that, under current U.S. immigration law, whether or not a foreign artist is required to have an artist visa (almost always either an O or a P) is not related to payment. What triggers the need for an artist visa is performance. Whether or not an artist is paid, whether or not tickets are sold, whether or not the performance is public or private, whether or not the performance is for a non-profit educational or a cultural organization, if an artist performs, and there is someone watching the performance, he or she is required to have an appropriate artist visa.

Except for rare and limited exceptions, an artist can never perform on a visitor visa or, if applicable, under the visa waiver program. One exception is a competition. An artist is not required to have an artist visa if the artist is coming to the U.S. for the sole purpose of participating in a competition where there is no payment other than expenses and a prize, monetary or otherwise. Another exception is an audition. An artist is not required to have an artist visa if the artist is coming to the U.S. for the sole purpose of auditioning or meeting with producers or presenters in the hopes of being hired to perform in the future.

While there is no official codification of a showcase being regarded as an audition, the U.S. State Department in conjunction with U.S. Citizenship and Immigration Services have long taken the position that a showcase is regarded as an audition if it meets the following criteria: The showcase is not open to the public, no tickets are sold or available, attendance is open only to registered members of the booking conference, and the artists are not paid and are responsible for their own expenses. Also, the artist cannot perform any other engagements in the U.S. while on the same trip. In other words, they need to get in, perform the showcase, and get out. If these criteria are met, then an artist may enter the U.S. and perform at the showcase on a visitor visa or, if applicable, a passport issued by a “visa-waiver” country.

Be forewarned: simply calling a performance a “showcase” is not sufficient. Nice try, but that won’t work. If an artist books a venue, sells tickets or otherwise makes tickets available to the public, but allows booking conference attendees to attend free, that is NOT a showcase for purposes of the artist visa exception and the artist will be required to have an appropriate artist visa. Similarly, booking an engagement with a low fee simply because the artist or the artist’s agent/manager believes such engagement will be an opportunity to showcase or introduce the artist’s talents to the U.S. market in the hopes of getting future bookings is also NOT a showcase.

If you believe that you or an artist you represent may qualify for the showcase exception, then, if the artist is traveling on a passport from a “visa waiver” country, he or she needs to travel with a letter from the artist’s agent/manager or, even better, from the booking conference itself, confirming that all the elements of the exception are met. If the artist is traveling on a passport from a “non-visa waiver” country, then he or she will need to apply for a visitor visa at a U.S. consulate, but should bring the appropriate letter with them explaining that the showcase exception applies.

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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

Can A Visitor Record An Album?

Wednesday, October 3rd, 2012

By Brian Taylor Goldstein

So glad I found your page on the internet, so far it’s been the most helpful out of all my Google searches! I have just a couple of questions. We are from Australia and I have a 14 year old son who has signed a recording contract in the US. Currently we are traveling back and forward on the Visa Waiver Program. I understand he is not aloud to perform until he has an “O” visa. However, is he aloud to record music in his producer’s studio for the album and take label meetings in the hope of placing a major recording contract? When I say meeting, its meeting with music labels for an interview/audition and you normally have to sing a song so that they can hear you and see if they like you in their office.

First of all, congratulations on the recording contract. Those are NOT easy to come by these days.

The visa waiver program allows citizens of certain countries (with Australia being among them) to enter the U.S. for up to 90 days as a “visitor” without first having to obtain an actual B1/B2 (visitor) visa from a U.S. Consulate. Citizens of visa waiver countries only need to have a valid passport to enter the U.S. as a visitor. When an individual enters on the visa waiver program, he or she is subject to all of the same rules and restrictions as if they had an actual visitor visa.

A “visitor” to the U.S. is allowed to do all of the normal visitor activities (sightseeing, shopping, visiting friends, etc.) as well as have business meetings. Visitors cannot work or look for work. Artists who enter as visitors are allowed to attend competitions and auditions (which, as we all know, is a heck of an amount of hard work!), as well as have meetings with producers, agents, and other arts professionals. However, with limited exceptions, they are not permitted to perform in front of an audience–even if they perform for free and/or no tickets are sold! An artist must have an appropriate artist visa (either an O or a P) in order to perform. When it comes to recordings, there’s a limited exception: A recording artist is permitted to come to the U.S. as a visitor to use recording facilities in the U.S., for recording purposes only, provided the recording will be distributed and sold only outside the U.S., and no public performances will be given. Otherwise, when recording artists enter the U.S. to record albums, they are required to obtain an appropriate artist visa.

In your situation, it is perfectly fine for you son to enter the U.S. on the visa waiver program to meet with his agents, producers, and representatives of his label. He can even have interviews and auditions. However, he cannot record music in his producer’s studio for purposes of a publicly released and distributed album unless it’s for an album that will be sold and released outside of the U.S.

You’re fortunate in that Musical America just released a fantastic downloadable report on the complex issue of obtaining U.S. visas for artists, full of helpful tips and explanations. You’ll also want to check out artistsfromabroad.org which has become the definitive resource tool on the issue and which contains an exhaustive array of information and materials.

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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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Posted in Artist Management, Law and Disorder: Performing Arts Division, Recordings, Visas | Comments Closed

When You’re Right, You’re Right!

Wednesday, September 19th, 2012

By Brian Taylor Goldstein

I wonder if you would mind giving me some advice on a visa situation with one of my artists. To summarise, I represent a British artist who was commissioned to write a 7 minute piece for a university in the United States which will be premiered in 2013. The artist will be traveling to the United States around the premiere for various events, including attending concerts and also one or two workshops led by the artist. Primarily, the new piece will also be conducted by the artist himself. In the past, this artist has always held an O-1 visa to work in the United States. However, the university is insisting that, because it is a university, the artist only needs a visitor visa and they are refusing to obtain an O-1 visa for him. The university is not only paying the artist for the commission (which has already been settled through his publishers) but for his visit and performance as a conductor. Therefore, I should think we need a visa and that it’s not really possible for him to travel on the visa waiver scheme – is that correct? If so, am I right in thinking that he really should get an o-1 visa as he always has before?

Because so many legal questions involve the application of broad legal concepts to issues of specificity and nuance, its customary to qualify certain answers by saying “it depends.” That is not the case here. Based on the details you have provided, you have made this extremely easy for me: you are correct. The university is wrong. Plain and simple.

Yes, he needs an O-1 visa. No, he cannot enter and perform on the visa waiver scheme. The visa waiver program allows citizens of certain countries (including the UK) to enter the US as visitors solely using their passports and without the need of obtaining an actual visitor visa. However, they are must abide by the same rules and restrictions applicable to all visitors—namely, no work. For artists, work is not defined by payment. ANY performance of any kind or nature, even if no tickets are sold and the artist receives no fee, is, nonetheless, defined as “work” While there are, indeed, certain exceptions, they are very narrow and limited and, in this case, are inapplicable. I suspect the university is relying on a narrow exception that permits individuals to enter the US as visitors in order to give a lecture or demonstration at an educational institution and receive travel reimbursement and an honorarium. However, that is not the case here. Your artist has clearly been “hired” to conduct. The fact that he is conducting an orchestra at a university does not qualify for a visa exception any more than the fact that music is being performed at a university exempts the need for licensing it (though many erroneously believe this to be the case!). The fact that the university may have convinced other artists to perform for them without the proper visa just means these artists did not get caught. Your artist may not be so lucky.

I would direct the university to www.artistsfromabroad.org. Also, Musical America is about to unveil a special visa issue which will be jammed packed full of insights and tips on bringing foreign artists into the US. Stay tuned!

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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Visas | Comments Closed

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