Dan Rees - Nomas Foundation - Road Back To Relevance 2016

Advice for artists seeking to perform in the US

Advice for artists seeking to perform in the US

There are some important lessons to be learned from Kizzy Crawford’s experience at the hands of US Customs and Border Protection last weekend.

First, however, I want to emphasize that there is no excuse for CBP officers to treat anyone rudely, least of all an 18-year-old musician who is obviously confused and freaked out. That is reprehensible, and on behalf of the whole US, I’m really sorry, Kizzy. And on the macro level, there is no excuse for Congress to allow an immigration system as flawed as the one we have to remain the law of the land—but that’s old news, and Kizzy’s experience was relatively mild compared to the horrors that are meted out in immigration detention centers and courts every day in this country. That being said, I want to discuss what happened to Kizzy, so everyone can learn from it.

At the risk of sounding unsympathetic, this disaster was completely avoidable, and had Kizzy understood the US immigration process, and been provided with the necessary documents, none of this would have happened. And aside from being rude (which is definitely not their job), it appears that the CBP officers Kizzy encountered were doing their job, and doing it properly.

Let me explain: As a rule, foreign performing artists must have a work visa (usually an P or O visa) to perform in the US. Period. Full stop. (And it doesn’t matter if you’re not getting paid.) It’s a CBP officer’s job, when encountering a foreign musician entering the US to perform, to start from the assumption that the artist needs a work visa. Now, it just so happens that there are a couple of very narrow exceptions to this rule, and it just so happens that Folk Alliance fits within one of these very narrow exceptions. But while that's very fortunate, and a remarkably reasonable rule, it’s important to understand that under US law, the burden is on the foreign artist to explain—and probably document—how and why the performance that they are coming to do falls within that exception. If the artist can’t then prove why he or she should be allowed in, the officer is obligated, under law, to deny entry.

Think of it like this: If you’re 21 years old and want to get into a bar, you know that it’s not enough to simply be 21 years old; you need to be able to prove it. If you show up without an ID, you might get lucky and the bouncer might let you in, but if he’s doing his job, you’re not getting in.

Kizzy was correctly told that she did not need a work visa to perform at Folk Alliance (more on why below). That’s like being 21. Kizzy was never told, it appears, that she would have to be able to explain this to a CBP officer’s satisfaction. No one told her she needed an ID. Since she was unable to explain why the her performances were special, the CBP officer was obligated to deny her entry.

So this is a message to managers, labels, and agents: SXSW is fast approaching, and hundreds of musicians will be coming to the US from all around the world, planning to enter the US on Visa Waiver/ESTA or on B1/B2 visas. Legally, in most cases, it is fine for them to enter the US to play SXSW (provided they are not also doing commercial shows). But practically, if they are not armed with an official invite from SXSW and (ideally) a handy ability to explain why it’s ok for them to perform at SXSW without a work visa, then they may well have the same awful experience Kizzy had.

And this is what they need to know: SXSW is an industry showcase event. Technically, artists are coming to "engage in commercial transactions, which do not involve gainful employment in the United States (such as a merchant who takes orders for goods manufactured abroad)" as per 9 FAM 41.31 N8(1). As such, provided the artists only perform unpaid official SXSW showcases, they can be relatively safe in the knowledge that they may perform legally. And provided they can explain this to CBP when they enter the US, their chances of getting in are very, very good.

And again, I’m so sorry for what you went through, Kizzy.

—Matthew Covey, Tamizdat, Brooklyn

Important: If you are encountering problems with the U.S. artist visa process, contact TamizdatAVAIL free legal assistance.

03/03/2015

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