America , Here We Come ! A Guide to Working in the U . S .
BUSINESS
Robert Baird is President of BAM ! Baird Artists Management Consulting in Toronto , offering performing arts consulting advice to artists , agents , managers , and venues . He is former President of NAPAMA and served for many years on the Executive Board and as VP of Festivals and Events
Ontario ( FEO ). He has a monthly column on “ Crossing Borders ” in International Musician : The Official Journal of the American Federation of Musicians of the United States and Canada .
By Robert Baird
America , Here We Come ! A Guide to Working in the U . S .
Every artist wants more gigs , and for Canadians , the U . S . is a natural draw . With more than 10 times the population of Canada , the audiences and opportunities for performance are greater south of the border . Once an artist has secured a booking , the real work begins : getting a visa in order to cross the border .
The first thing a foreign artist needs to know is that the word “ visa ” for a performing artist refers to a temporary “ work ” visa . This visa is a requirement for any kind of performance in the U . S . – paid or non-paid .
Unfortunately , there is a misconception that if an artist does not get paid for a performance in the U . S . a visa is not required . The artist may quite rightly feel that a performance that is “ free ” should not trigger any kind of visa or work permit requirement ; however , the key consideration is not payment but rather “ performance .” A performance of any kind requires a work visa in the U . S .
Work Visas A non-resident alien ( NRA ) can apply for different types of visas and artists normally apply for an O-1 , P-1 , P-2 , or P-3 visa . Each visa category requires a separate visa application for support staff and / or technicians accompanying an artist .
Let ’ s start with the P-2 ( AFM ) visa . The P-2 visa category is part of a reciprocal exchange program negotiated between Canada and the U . S . First of all , everyone applying for a P-2 visa must be a member of the AFM ( CFM ) ( except technicians ) and everyone must fill out a fourto-five-page application . In addition , you must provide a copy of the biometric page from your passport or a copy of your permanent residency card , as well as a signed copy of all contracts for performance in the U . S ., a detailed itinerary if you are performing at more than one venue , and the required fee to USCIS and an administrative fee to the AFM ( CFM ). I recommend the P-2 visa as the best vehicle for dealing with visa requirements in the U . S .
If you are not an AFM ( CFM ) member , then you have the option of applying directly to the U . S . Citizenship and Immigration Services ( USCIS ) for an O-1 visa ( for the individual who possesses “ extraordinary ability ” in the arts ), the P-1B visa ( for members of an entertainment group that has been recognized internationally as outstanding in the discipline for a sustained and substantial period of time ), or the P-3 visa ( for individuals or groups who are culturally unique .)
For all of these visas , you need to fill out a complicated application to exacting USCIS standards and supply a consultation letter from a USCIS-designated American labour / non-labour organization . You will need copies of a signed contract for every performance in the U . S ., along with your passport biographical data page , a complete biography , letters of recommendation from distinguished references , copies of press reviews to prove recognition of your “ extraordinary ability ,” and , of course , the requisite fee . The requirements are daunting and the USCIS will often return an application if it has not been completed properly or the support material is not sufficient to justify approval .
Work Visa Exceptions There are two exceptions to the temporary work permit requirement : a competition or an audition . A showcase at a conference falls under the latter category if , and only if , the artist is not paid and covers his or her own expenses , attendance is restricted to the registered attendees of the conference ( no public admission ), no tickets are sold , and no other performances are part of the same trip . If these criteria are met , an artist can enter the U . S . on a visitor visa ( or with a passport from a visa-waiver country ) to do a showcase . In any case , you should obtain a letter from the conference confirming that the criteria listed above will be met .
Withholding It comes as quite a surprise to some musicians to find that the fee they expected to receive has had a portion withheld . In the U . S ., the requirement is that anyone paying a foreign artist has to withhold 30 per cent in taxes on U . S . income .
There are several exemptions to having that percentage withheld : 1 . Tax Treaty Exemptions a . If the performing group is considered a business and has no permanent establishment in the U . S ., then the Canada-U . S . Tax Treaty will allow full payment of the fee . b . Individual foreign artists are allowed to earn a certain tax-free sum annually in the U . S . The U . S . -Canada Treaty allows USD $ 15,000 tax-free annually . 2 . Foreign Tax-Exempt organizations may qualify if the IRS determines they are tax exempt in America as well . 3 . An individual artist can apply to the IRS for a Central Withholding Agreement ( CWA ) for a reduction in the required 30 per cent withholding .
Taxation It ’ s a good idea for all foreign artists who work in the U . S . to file a U . S . tax return to report the U . S . income . For individuals , submit either form 1040NR or 1040NR-EZ and for businesses , form 1120-F .
Knowledge of work visas , withholding , and taxation is a must for any artist who wants to work south of the border . The requirements are complicated but the rewards can be well worth the effort .
62 • CANADIAN MUSICIAN