So, for this last installment in a three-part series on US visas, we get some expert insight from immigration lawyer Andrea Szew into the options available for musicians and crew travelling in for the showcase…
If you are solely playing a SXSW showcase, should you enter on an ESTA or a [tourists’] B visa?
If you are coming solely to perform at an official SXSW showcase and have an invitation letter stating so, then you may be able to enter without a work visa using either the Visa Waiver Program (ESTA) or a B visa.
The difference between the two is that you apply for the ESTA online quickly and easily without having to obtain an actual visa in your passport. A B visa, on the other hand, is an actual tourist visa that you would apply for at a US consulate abroad.
If the B visa is granted, the consulate will place a visa in your passport that you will present at the border upon entry.
Therefore, which one is better? This is something that you must decide based on cost and time available to apply. If you chose to apply for a B visa at the consulate, you need to present documentation to evidence what your true intentions are, pay a visa fee, and convince the officer reviewing your case that you intend to return to your country and will not work while in the United States.
If you chose to enter under ESTA, then you will need to make the argument and present the evidence to the US border patrol and they will make the unilateral determination if you may enter.
The process of applying and being granted a B visa at a US consulate abroad is beneficial because it is less likely that the border patrol will deny entry, since they are not the only ones determining your intentions. The border patrol will know that you have already presented sufficient evidence at the US consulate to obtain the visa.
However, never forget that, even if your true intentions are only to perform at an official SXSW showcase, border patrol officers have the ultimate decision on whether you need a work visa. Therefore, no matter how small their suspicion is, they can deny entry to anyone, with or without a visa, who they think will be performing outside the parameters of an official showcase. With that said, I would always advise to err on the side of caution and get a work visa if it is possible and practical.
If you come in for a showcase, can you also do other shows if you are not paid?
No, you cannot play other shows outside of what you were invited to play by SXSW without obtaining a work visa. It does not matter if you are paid or not. What matters is that you are working for someone who is benefiting from your performance.
For example, if you do a small gig at a bar that charges a cover or sells drinks, then you are working for that bar because they are financially benefiting from your performance. Just because you are not paid does not mean you are not working for someone in the US. Therefore, you cannot perform in other venues while in the US on a tourist visa obtained for SXSW.
If you want to apply for a tourist visa (B visa) at a US consulate, what are some of the items you should take to the interview?
You should definitely take your SXSW invitation letter, a letter from your manager/agent describing what you plan to do in the US, a round-trip ticket, a clear and detailed itinerary of where you will stay and what you will be doing while in the US, evidence of ties to your country (for example, lease agreement, employment contracts for future shows, etc.), and any other information that would support and evidence that you are only going to attend SXSW and perform the showcase you were invited for.
It is also a very good idea to hire an attorney to assist with this application, so you have a complete and strong case that you can use not only at the consulate, but also at the border upon entry, if questioned.
In this time of high scrutiny of anyone entering the United States, you must be realistic and understand that, even if you do everything that you are supposed to do, there is a chance you will be turned away at the border. Therefore, it is of the utmost importance to be prepared and take the extra steps necessary to secure a smooth entry.
Missed parts one and two? Read them here:
Andrea Szew is the founder and managing attorney of the US law firm Szew Law Group, which specialises in immigration and international business. She has been an attorney for over 20 years and has focused on immigration for the last 15, during which time she's obtained visas for hundreds of artists, producers, production companies and crew members throughout the entertainment industry (including music, motion picture and television).