By Brian Taylor Goldstein
Dear Brian,
I wanted to ask your advice about the visa needs of one of my artists. The artist is going to the USA twice this year to work. The first time will be to conduct a youth orchestra in rehearsals and a concert. The contract for this engagement is between the orchestra and my agency (based in London) and my agency will be receiving the fee. Therefore, I think I’m right in saying that the Artist will definitely need an O1 visa. (Their lawyer says that the Artist does not need a visa, but I think they are wrong.) The second engagement is slightly different, in that the artist is going to a school, but simply to do a series of talks and group discussions, not to conduct any public performance of any kind. It is almost certain that he is not receiving a fee for this, but his flights will be reimbursed by them. Having said this, if the school books his flights for him, then there may be no exchange of money at all. Will he need a full-blown visa for this engagement, as well? If not, what does he need? Many thanks in advance for your help.
Thanks for giving me this chance to address a common misunderstanding: many people believe—incorrectly—that if an artist is not paid in the US or if he or she is paid through an agent or a corporation, then no visa is required. Nothing can be further from the truth. A proper work visa (usually either an O or P visa) is required anytime a foreign artist “performs” in the United States—regardless of how they are paid or how much they are paid or where they are paid or who receives payment or even if they perform for free before an appreciative audience of starving orphans and poor widows! What triggers the need for a work visa is neither payment nor an exchange of money, but, rather, “performance.” Except for a few narrowly defined exceptions—including auditions and competitions—a foreign artist can never legally perform in the United States on a visitor visa (or, if applicable, by entering under the visa waiver program). Any time a foreign artist performs in the United States, a work visa is required.
So, with regard to your Artist’s engagement with the youth orchestra, you are absolutely correct! Your artist will definitely need an O-1 visa. Please refer what I suspect is the orchestra’s well-meaning, but ill-informed, board member to www.artistsfromabroad.org. And do not succumb to the pressure of being assured that their organization has never had to obtain visas for other foreign artists, has never been caught, everyone else does this, etc. etc. Make no mistake. Its not the orchestra taking the risk here—its your artist! If your artist is caught, the worst that happens to the orchestra is a quick search for a replacement, or, at worst, a cancelled concert. For your artist, he could be subject to future travel restrictions and bans that could ruin his future opportunities in the United States.
This is not to say that payment is never relevant, merely that it is not the deciding factor. The first step in any analysis of this nature is not payment, but performance. If the artist is not performing, then the second question is whether or not any fees are being paid. Which brings me to the question of your artist’s engagement at the school. You write that he is being engaged “… simply to do a series of talks and group discussions, not to conduct any public performance of any kind.” Excellent. That means he is not “performing”, thus, unless he is receiving a fee, a work visa will not be required. See how this works? Reimbursement for actual costs or even having actual costs covered is not the same thing as receiving a fee. If he were receiving an honorarium or a “flat fee” which he could apply towards his costs, as opposed to actual reimbursement, that would be a different matter indeed, but that does not appear to be the case here. As a result, your artist will not need an O-1 for the school engagement, but could enter either on a visitor visa or, if applicable, under the visa-waiver program. Nevertheless, if the two engagements at issue are reasonably close together, I would strongly advise you to obtain a single O-1 visa with sufficient classification to cover both engagements. Not only would this alleviate any guesswork, but it would remove the risk of adverse questions from a poorly-trained border troll (ie: US immigration officer at the port of entry) and you would only need to file a single petition to cover both engagements.
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