Advice for Scottish artists planning to tour in the United States of America.
The advice below is generic and the situation is very different right now. Here is an update we received on 9th September 2020 from Covey Law.
USCIS fee increases and other changes
Effective October 2, USCIS is raising the filing fees for most visa petitions and applications. The fee for O petitions, which is currently $460, will increase to $705. The fee for P petitions, which is currently $460, will increase to $695. There will also be new additional costs for groups larger than 25. At the same time, the processing time for USCIS’s optional Premium Processing expediting service (which costs an additional $1440 per petition) is increasing from 15 calendar days to 15 business days. Lastly, while the fees for green card applications have only changed by $10, naturalization fees have increased from $725 to $1170.
These fee increases create substantial new burdens for the performing arts, which are already in a state of collapse. However, we encourage the international cultural community to remember that this fee increase is a small part of a much bigger problem: since the early ’90s, when the O and P visa classifications were created, the average effective cost of securing a visa for a foreign artist has increased more than 2000 percent. Only a fraction of this escalation reflects increases in the government fees. The bigger problem is that the U.S. government’s application of the O and P regulations has become so arbitrary and onerous, that most arts institutions have been forced to hire attorneys to manage the process for them. As such, presenting performing artists in the U.S. now comes with massive legal costs, which are—in our opinion—a catastrophic financial impediment to cultural exchange. The U.S. government needs to reign in the bureaucratic creep of their procedures, which would make the visa process cheaper for them, and fairer, faster, and more affordable for artists and arts institutions.
Consular processing and travel restrictions
Routine visa services remain suspended at many U.S. embassies and consulates, but some have resumed visa interviews. You should be able to find up-to-date information on the website of your local U.S. embassy or consulate. However, the COVID-19 travel restrictions imposed on a number of countries by the Trump administration remain in place (see the second question on our FAQ page for the complete list). As a result, not only is travel from those countries restricted, but also U.S. consular posts in those countries are generally not issuing visas to individuals who do not qualify for an exception to the restrictions.
But there may be a little good news: recent anecdotal reports suggest that U.S. embassies and consulates are starting to be more lenient in offering waivers of the travel restrictions. Increasingly, it’s appearing that if you have an urgent need to travel to the U.S. for work, you might be able to travel—finally. Each consular post has different procedures for processing such a request; reach out to us if you think you might qualify.
Visas for touring and showcasing
If you are going to the USA temporarily to do work that you are going to be paid for you will need a non-immigrant work visa. Obtaining a visa to work temporarily in the US can be a long and expensive process. Fees, procedures and time scales are prone to change so please be sure to seek the advice of a qualified US-based immigration attorney for up to date advice.
Your attorney will more than likely require a retainer for your services, this could be in the region of £2500 or more do you will need access to this kind of funding well in advance of your tour.
The majority of costs will be for submitting the petition so make sure you have everyone you need on the petition. It’s better to include extra names than not have a visa for a replacement or extra person if required. Everyone will have to attend the embassy in London or Belfast so take that into account.
You will need to have at least some, but preferably all, shows booked and contracted before you can submit a petition. This can make it very difficult to allow plenty time for visa processing.
You will also be required to attend a visa appointment at the US Consulate. For UK residents this means visiting either London or Belfast so be sure allow time for such a trip! It’s possible to obtain expedited processing if something goes wrong and time is getting tight but be warned this is expensive! If you are going to London you will usually be required to attend early in the morning which can be difficult if you are travelling from afar.
The type of visa required for musicians will be one of the following:
- O-1 individuals with an extraordinary ability in the arts
- O-2 persons accompanying an O-1. This can be band members or crew
- P-1B A Member of an Internationally Recognized Entertainment Group
- P-2 Individual Performer or Part of a Group Entering to Perform Under a Reciprocal Exchange Program
- P-3 Artist or Entertainer Coming to Be Part of a Culturally Unique Program
The US Citizenship an Immigration Services (USCIS) guidance on each classification can be found here http://www.uscis.gov/working-united-states/temporary-workers/temporary-nonimmigrant-workers
O visas can last up to 3 years but this will usually only apply to those who can show a history of regular US touring. P visas will usually be valid for 1 year but are often specific to the itinerary submitted on application. Just because you have a ‘valid’ visa does not mean that you will be allowed in. Check with your immigration attorney if you have any doubts. Being refused entry will cause you big problems in the future.
If you are an artist who qualifies for the kind of opportunities found via this website we’d say you are more likely to be applying for a P-3 (but obviously your attorney can advise appropriately).
Supporting documents required will vary depending on the type of visa applied for but generally you will be required to supply your attorney with passport photo pages, copies of any prior visas obtained, contracts for all the gigs, a tour itinerary, your artist biography and discography, confirmation of any awards and maybe press articles about your work.
If any members of the travelling party have a criminal record or have been denied entry to the USA before this will cause delays & may well mean that they will be denied a visa. Please allow extra time for anyone in this situation.
Once they have all the required information your attorney will file a petition with USCIS. Within a few weeks of filing you should receive a filing receipt. This allows you to book an appointment at the US Consulate in London (step 3 here http://london.usembassy.gov/niv/apply.html) or Belfast (step 3 here http://belfast.usconsulate.gov/apply.html).
Note that while your filing receipt allows you to book an appointment, your petition will not yet be approved, and you’ll need it to be for your visa to actually be issued. It can be tricky to get this right given the varying processing times! The US Consulate can hold on to your passport until the approval is received, but if you need your passport in the meantime and you don’t have a second one for situations like this then you might find yourself having to cancel the appointment and rebook.
If you are going to the USA to do an unpaid Showcase performance you do not need a work visa. Theoretically you can do this on an ESTA but generally the advice is to get a B1 visa. This visa allows you to enter the US to carry out business activities such as attend conferences or meetings. There have been some examples of artists being turned away at the immigration when attending showcasing events such as South by Southwest and trying to enter on an ESTA. We know of no cases where entry has been refused when artists are legitimately entering on a B1.
To obtain a B1 visa you must first complete a DS-160 form which you must do online here (https://ceac.state.gov/genniv/ "") Once you have done that you must pay the visa fee of $160 and then schedule an appointment at the US embassy in Belfast or London. If possible go to Belfast as they tend to be a lot nicer and quicker. Everyone applying must attend the embassy in person for an interview. Take as much information with you as you have about the event you are attending. If possible obtain a letter of invitation stating from the event which shows that you are not being paid to perform.
The costs of obtaining a B1 can certainly add up especially if there are a few people in the group but this has to be balanced with the risk of being turned away at the border. If that happens not only will you miss out on the event that you were attending and have to bear all the costs of flights that you have already paid for. It will also go on your record that you were refused entry to the USA and you will have to declare that on every subsequent visa application.
Here are some of the companies who specialise in providing visa services to artists touring in the USA. We are not recommending or endorsing any of these companies & there are other who provide the same service who you may choose to use.
Viva la Visa, contact Andy Corrigan firstname.lastname@example.org
Tam Ray Touring, contact Katie Ray, email@example.com
Tamizdat, contact Matt Covey, firstname.lastname@example.org
Your earnings in the US will be subject to withholding tax of 30% unless you enter into a Central Withholding Agreement (CRA) with the IRS (official guidance here https://www.irs.gov/Individuals/International-Taxpayers/Central-Withholding-Agreements)
Essentially this means obtaining a waiver to reduce the rate of tax based up your budget for the tour and your expected net profit (or loss!). If you’ve worked in the US before you will need to have filed tax returns in order to obtain a CWA (if this wasn’t done at the time you’ll need to do it now for the years in question). You will also need to agree to file a return for the current tax year.
You will need a Central Withholding Agent to arrange all this for you. These are professionals authorised to negotiate CWAs with the IRS. It might cost in the region of $750 for their services but could save you much more in tax across a whole tour. Your visa attorney can probably recommend someone and it’s a good idea to make a start on both fronts early on.
You will need to provide copies of contracts and a detailed budget of all income and expenditure for the tour.
When the CWA is granted the IRS will provide a letter of confirmation which can be distributed to each venue or festival on the tour confirming they do not need to withhold 30% of your fee.
Take note: In order to file your tax return you will need a Social Security Number or Individual Tax Identification Number. Applying for one of these requires a visit in person to the relevant tax office,so if you don’t already have one of these numbers you will need to make time to do this while on tour in the US. You will need to give a US address for your SSN or ITIN to be posted to, this will be the address of the Central Withholding Agent you have hired.
Here are some companies who provide CWA services. We are not recommending or endorsing any of these companies & there are other who provide the same service who you may choose to use.
CWA Management, contact Frank Page, email@example.com
Donenfeld Management, contact firstname.lastname@example.org
Jess S. Morgan & Co, contact email@example.com
You can find thorough guides to both visa and tax requirements here http://www.artistsfromabroad.org/