Visas
The information given here is of a broad nature. The objective is to try and familiarize you with key terms and provide a basic knowledge of the visa process for foreign artists performing in the United States. Throughout, we will refer to the United States Citizenship & Immigration Service as CIS. We make note here and there of the aspects that are unique to Canadians.
Performing Artist
The performing artist is the beneficiary(s) - aka non-immigrant alien(s).
This can be a musician, dancer, acrobat, puppeteer, actor, author....
Support personnel to the performing artist include: sound, light, instrument technicians, stage managers and directors, riggers, support musicians, choreographers, costume, makeup personnel.....
Petitioner
The petitioner is the individual or organization that will submit the beneficiary s I-129 petition for non-immigrant worker and related documents to CIS in order to obtain an I-797 Approval Notice. The petitioner must be located in the United States. If there is a corresponding support petition, the same petitioner is used and the support petition must be filed at the same time as the principle petition.
Visa Classifications
There are two visa classifications for performing artists: O-1B for soloists and P for groups (2 or more persons). Within the P category are P-1B, P-2 and P-3. Each classification has a corresponding classification for support personnel: O-2 and P-1S, P-2S and P-3S respectively.
Soloists:
O-1B:
The O-1 can be valid for up to a maximum of 3 years. In order to qualify for 3 years, or a portion thereof, you must have contracts or deal memos and letters of interest or invitation that span the time period you want.
Individuals may also apply for a P-3 culturally unique classification - see below.
Corresponding support personnel classification: O-2.
Groups:
P classifications can be valid for up to a maximum of 1 year. As with the O-1, you must have contracts or deal memos and letters of interest or invitation that span the time period you are requesting.
There are 3 P classifications for groups:
P-1B:
Members of an internationally recognized entertainment group - whether music, dance, theatre. At least 75% of the group must have been with the group for at least 1 year (unless said member is a temporary sub due to illness, schedule conflict etc). In documenting your P-1 status bear in mind that CIS is not interested in the individual members - but the group/ensemble/company as a whole. Further, the success of one particular production does not necessarily satisfy the P-1 criteria. CIS does show some flexibility with the “internationally recognized” criteria if due to geographic restrictions and/or a lack of access to news media.
P-2:
Participant in a reciprocal exchange program, usually with a labor union such as Actor’s Equity or the AFM, wherein the USA union becomes the petitioner and arranges a reciprocal presentation in Canada. It is recommended you contact the appropriate union well in advance. If a group plans to tour the United States frequently, it is advisable to become established as a P-1.
P-3:
Culturally unique performer (including individuals), groups, teachers, coaches. You qualify for a P-3 visa if you are a “culturally unique” individual performing artist or entertainment group coming to perform, teach or coach under a commercial or non-commercial “culturally unique” program or event. “Culturally unique” means “a style of artistic expression or medium which is unique to a particular country, nation, society, class, ethnicity, religion, tribe or other group of persons.” For the P-3 classification there is no specific time the members have to have been together. CIS allows one to be fairly broad in demonstrating “culturally unique”. One can demonstrate cultural uniqueness through press reviews, articles, letters from foreign governments, awards, prizes, testimonial letters from experts and letters of support from the presenter(s).
0-3, P-4 Spouses & dependents:
Spouse/dependent(s) are NOT included on the principle beneficiary’s petition and are not allowed to work.
A spouse and/or unmarried children who wish to accompany an O or P performing artist or support person may qualify for an O-3 or P-4 visa classification. If the spouse/dependent(s) are Canadian citizens, presenting proof of relationship, together with principle beneficiary’s I-797 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 O-3 or P-4 visa at a U.S. consulate abroad. They must provide evidence of their relationship to the beneficiary.
Notes and precautions:
- Do not pass off a technician as a member of the group to avoid a separate support personnel petition.
- Do not enter to perform without the appropriate visa.
- U.S. border control personnel are very web savy and frequently Google to check people they suspect of entering falsely or with the incorrect classification.
- A non-immigrant "O" or "P" work visa is required regardless of whether or not the artist is being paid. If the performance is open to the public, even with free admission, a work visa is required.
- If performing at a conference showcase that is closed to the public and for industry professionals only, one may enter on a visa waiver or a B visa. In either case, a letter from the conference organization and/or a U.S. immigration attorney stating the details and nature of the performance is required.
Petition Materials
Every petitioner has his/her way of organizing and presenting a petition, and each case has its own particular slant. While there are common aspects to all petitions, your petitioner should provide you with a list of required materials for your particular case.
Common to all petitions:
- USCIS Form I-129 - contains the basics of the petition - name, address of petitioner, beneficiary information, intended dates, fees being paid etc
- color jpeg scan(s) of passport 2 page biographical page spread
- performance contracts, deal memos and/or letters of intent/invitation
- itinerary
- press and other support documents
- for support personnel petitions only: statement regarding the essentiality of support personnel and individual bios
Notes:
Gaps between U.S. performances should not exceed 2 to 2.5 months. A petition submitted with gaps of +2.5 months may be denied or only approved for a portion of the requested time period.
Whether a company, or an individual, the petitioner must know if any personnel have been arrested/convicted of anything ANYWHERE in the world. If so you must provide court/police records pertaining to the arrest/conviction.
Contracts:
Ideally one submits fully executed performance contracts - or signed by at least 1 party (tech riders not necessary). However, presenter bureaucracies can be slow in providing contracts and many a petition has been delayed as a result. A Deal Memo from the presenter that states the basics of the contract– presenter information, artist, date(s), venue, services to be performed, fee - is acceptable and often easier to obtain in a timely fashion.
Should you have tentative dates beyond your contracted dates, to extend your visa period as much as possible within your classification (up to 3 years O, up to 1 year P) one can submit the following documentation in support of these tentative dates:
- letter of interest (or invitation): a general letter from presenter to artist that expresses interest in presenting the artist - mention should be ade of preferred date(s), fee range - specific details need not have been finalized and it can be stated "further negotiations required" or "contracts to be issued at a later date".
- email correspondance: gather and organize into 1 document pertinent email correspondance w/a presenter wherein possible dates, fees are mentioned - basically an electronic version of a letter of interest
- if artist has management, artist management may also request, in a formal letter to the artist, his/her availability for U.S. tours during a certain time period(s), backed with documentation on confirmed dates, tentative dates, dates in negotiation
Itineraries:
Most petitions are itinerary based. 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, non-U.S. days/activities must also be accounted for be they performances, rehearsals, teaching, holidays.
With an itinerary based petition 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 tour plan and not the beneficary's sole source of revenue - as demonstrated by the non-U.S. activities on the itnerary
Press & support materials:
Whether applying for an O-1B or a P visa, with both you must document the artist’s extraordinary ability (distinction) in the arts. While documenting extraordinary ability is varied and broad, CIS 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 they 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.
For the most part the press materials submitted with a petition include:
- artist/company biography
- performance highlights for past 2 seasons
- performance reviews, articles, CD reviews
- discography (if applicable)
- list of awards, competition wins (backed with scans of any award certificates)
- list of grants past 2 seasons (if applicable)
Note that CIS looks upon artists (or management) generated press materials as "self promotion". While these items are indeed important, CIS is more impressed with seeing scans of:
- original reviews and articles
- award certificates, competition wins
- testimonials and letters of support from presenters, peers, arts and government organizations - especially for young emerging artists
Dos and Don'ts:
- all materials must be in English
- foreign language bios, reviews, articles or excerpts thereof must be translated and the translation must be certified
- do not send CDs, DVDs or photos
- do not flood your petitioner with all manner of press documents and materials - let your petitioner tell you what they need to demonstrate your classification
Support Personnel:
If filing a corresponding support petition (O-2, P-1S, P-2S, P-3S), documentation is the same as for the principle beneficiary. However, one must also document the “essentiality” of the support personnel and when each began working for the principle. This is generally documented with a statement as to the essentiality of the support personnel with short individual bio(s) for each support person.
Labor Union consultation
Prior to sending the petition to CIS, one must obtain a labor consultation from an 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 CIS. The AFM has a one-page questionnaire as well. Regardless of whether it is a positive or a negative consultation, CIS is not to base its decision on that of the union. Do not play with job titles to avoid a second or third union. Where there is no appropriate union (artistic directors), a standard paragraph is included in petition cover letter 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 obtain necessary union consultations that include all responsibilities of the beneficiary.
Time Line
Rule of thumb: as soon as a USA tour is evident, even while dates are in negotiation, start preparing for the visa process.
At the outset:
- choose your petitioner
- determine your classification and time period
- be sure passports are valid for at least 6 months beyond the last departure date of the requested time period - if necessary - start passport renewal process.
If you are a Canadian citizen, or group with all Canadian citizens, there are 4 parts to the process time line:
- gather materials so petitioner can prepare petition(s): 2-3 weeks pending how organized artist and petitioner are
- submit petition(s) to labor union(s): 2-10 days pending the union and whether or not you use the union's expedite service (not all offer this)
- submit petition(s) to CIS: 7-10 days to receive I-797 Receipt Notice
- CIS Form I-797 Approval Notice: 12-30 days from the date you submit petition(s)
To this it is highly recommended you add a safety net of 15-20 dats. The safety net allows time for the unexpected, the most common being a Request for Further Evidence (RFE) such as:
- further evidence of the artist’s “extraordinary ability”
- an incomplete itinerary
- lack of a signature on the I-129
- contracts, deal memos etc do not match the itinerary
For the above, therefore, plan between 1.5 - 2 months.
If you are a Canadian company and have non-Canadian personnel an additional step following receipt of the I-797 Approval Notice from CIS, of a U.S. Consulate interview and issuance of a visa into the beneficiary’s passport.If a Consulate procedure is required, add 3-4 weeks to your time line.
There are two ways to file a petition with CIS:
Regular Processing - cases adjusicated in 15-30 days
Premium Processing - cases adjudicated in 15 days
CIS service centers (Vermont an California) are currently making every effort to adjudicate Regular Processed petitions in 15-30 days, however, the service centers are not bound to this. Nonetheless, with proper planning, there should not be a need for Premium Processing and it's additional fee of usd$1,225.00.
Processing Locations & Consulate Procedure
When approved, CIS will advise the Processing Location designated on the USCIS Frm I-129. This will be one of the following:
- port-of-entry (POE)
- pre-flight inspection (PFI)
- U.S. Consulate
For Canadian citizens, who do not require a Consulate interview the CIS Processing Location will be either a POE if arriving in the USA by ground (i.e. Champlain, NY) or PFI if arriving by flight (i.e. Pierre-Elliot-Trudeau Airport, Montreal) or both as the artist requires.
The following is required to enter:
- USCIS Form I-797 Approval Notice
- copy of petition
- valid passport
If a Canadian company has non-Canadian personnel, they must apply for a visa to be issued into their passports at a U.S. Consulate following receipt of the I-797 Approval Notrice.
It is very important that companies with personnel that must obtain a visa from a Consulate plan well ahead. It occurs too often that a 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.
Each consulate requires “x” number of days advance notice to schedule interviews and “x” number of days to process visa into passports - during which time the consulate retains beneficiary’s passport. Most average 3-5 days advance notice to schedule interviews and 1-3 days to process visas.
If the Consulate procedure is required, at the very outset of the visa process:
determine at what consulate(s) you will apply for visa
what is the Consulate's wait times for scheduling interviews and processing of visas
determine your window for the interview(s)
familiarize yourself with the forms, fees and procedures for that particular consulate
Be prepared for the unexpected, a Consulate can conduct an in-depth security check at their own discretion. When they do it can take 1-4 weeks. Remember, even if the beneficiary has received a similar visa in the past, it does not guarantee they will receive one the next time around.
A Consulate interview cannot be scheduled until you have the CIS petition(s) Receipt Number(s). This is usually received 5-7 days following when the petition was sent to CIS.
Multiple processing locations:
If more than one processing location is required – for example a POE for Canadian personnel and a consulate for non-Canadian personnel, your petitioner will designate the consulate and the I-797 Approval Notice will list the consulate as the designated processing location.
However, within 72 hours the approval will be in the government’s PIMS (Petition Information Management System) data base. At that point, officers at a POE, PFI or consulate will have access to the case and will verify the approval in the computer system.
For more information download Processing Locations & Consulate Procedures.pdf
Fees
Aside from the fee your petitioner charges, there are the following fees:
Union Consultation: $250.00-$300.00 per petition for regular service and $300.00-$500.00 for expedite service
CIS Form I-129 & Supplement: $325.00 per petition (regardless of number of personnel on petition)
CIS Form I-907 Premium Processing (if needed): $1,225.00 per petition
- $190.00 per visa issued
- in some cases an issuance fee - the issuance fee is charged if the country from which the beneficiary comes from charges U.S. citizens a similar issuance fee - to find out if you must pay an issuance fee go to: http://travel.state.gov/visa/fees/fees_3272.html
Entering the USA
When entering the USA foreign artists (with the exception of Canadians and Mexicans depending on when and where they enter) are required to provide information to Customs and Border Patrol (CBP) who then issue Form I-94 Arrival/Departure Record. The I-94 is proof of lawful entry, states the visa classification, the arrival date and visa departure date. The I-94 is given up at last departure from the USA.
As of April 30, 2013, United States CBP will no longer issue physical I-94 Arrival / Departure forms. The arrival / departure process will now be electronically automated. Upon arrival in the USA by air or sea, CBP will gather the same information automatically from the artist’s travel records and will enter the artist’s visa classification and departure date electronically. Note: as advance information is only transmitted for air and sea travelers, CBP will continue to issue paper form I-94 to those entering at land ports (meaning for Canadians and Mexicans).
When entering from air or sea, the CBP will stamp passports of each arriving artist with classification, arrival and departure dates. Note: at entry one can request additional days be added to visa period for holiday. It is at the sole discretion of the CBP whether or not to grant said request. Conversely, CBP also has the discretion to issue a sooner departure date.
Should an artist(s) want a hard copy as evidence of admission and their immigration status, they can go to the web site www.cbp.gov/I94 (site goes live April 30, 2013), enter required information and then access and print their record number and admissions information as needed.
When departing the USA, the artist(s) does not need to do anything different. If the artist(s) did not receive a paper I-94, departure information will be entered electronically. If an I-94 was issued, continue to surrender these upon departure to CBP.
CBP will phase-in the Form I-94 automation at air and sea ports of entry throughout April and May, 2013. Foreign artists will continue to receive the paper Form I-94 if a particular air or sea port of entry has not yet been automated.
When entering the USA it is recommended that beneficiary have copy of I-797 Approval Notice and from the petition - contracts and itinerary. If not a bother, never hurts to have a copy of the complete petition. Beneficiary should be familiar with the petition: where going, staying, types of venues etc.
You can read more about CBP’s plans and schedule to automate Form I-94 at:
http://www.cbp.gov/xp/cgov/travel/id_visa/i-94_instructions/i94_rollout.xml
CBP has also issued a fact sheet that includes frequently asked questions regarding the impact of automation, visa revalidation, passenger processing times, and more. You can access that at:
http://www.cbp.gov/linkhandler/cgov/newsroom/fact_sheets/travel/i94_factsheet.ctt/i94_factsheet.pdf