Canadian Musician - November/December 2021 - Page 31


Answering FAQs About Recordings , Performances & Other Artist Activities in the U . S .

By Catherine Glazer
I have to record at a studio in the U . S . but I don ’ t have a work permit . Is that allowed ? Musicians are permitted to enter the U . S . without a work permit in order to use recording facilities . You may be admitted in “ B-1 ” or business visitor status , so long as your trip is for recording purposes only , the recording will be distributed and sold only outside of the U . S ., and you will not give any public performances while in the U . S .
Can I perform in the U . S . without a work permit if I ’ m not getting paid ? Musicians may enter the U . S . without a work permit , but only in extremely limited contexts . Amateur entertainers who will not be paid for performances and will perform in a social or charitable context may be eligible to enter the U . S . in “ B-2 ” or visitor status for these purposes . Most artists will not fall under this category as the government defines amateurs as those who are not members of the music profession and normally perform without payment . If you are a professional musician and normally perform in exchange for payment , you cannot perform in the U . S . without a work permit , even if you don ’ t earn anything for the performance .
Professional musicians are permitted to enter the U . S . without a work permit in “ B-1 ” or business visitor classification to participate in international competitions . They may not be paid for the activities , aside from prize money and expenses , and they may not perform outside of this context .
So , under most other circumstances you will likely be required to obtain a work permit .
My music career is going well and I recently received an award . Will I qualify for the Extraordinary Ability visa ? Congratulations on your award . The “ O-1 ” or “ extraordinary ability ” classification for those with distinction in the arts involves proving a level of talent and recognition that is well above the ordinary skill of their peers in the field . Having an award is certainly a helpful factor . To qualify for the O-1 , you would also be required to prove that you are renowned in the industry as a leading , prominent artist . If the award is one of the world ’ s most prestigious , such as a Grammy , it may be sufficient proof of extraordinary ability on its own . Otherwise , you must provide evidence of at least three of the qualifying criteria , which include : lead or starring roles in distinguished productions ; similar critical roles in distinguished organizations ; critical reviews evidencing national or international achievements ; major commercial success ; significant recognition from critics or other experts ; or a high salary compared to others in the field . Extraordinary ability can be difficult to prove , so it is always prudent to include as much evidence as possible for each relevant category .
What if I have to go to the U . S . to perform at a paid show but don ’ t qualify under Extraordinary Ability yet ? Because this type of activity would be considered entering the U . S . labour market , you would require a work permit . Aside from the O-1 , there are certain types of work permits that you might consider , such as the P-2 for musicians who are part of a reciprocal exchange program . If your work is culturally unique , you may also consider the P-3 for musicians seeking entry to the U . S . on their own or as part of a group for the purpose of teaching , developing , interpreting , or representing a unique or traditional musical performance or presentation . This category is usually reserved for ethnic , folk , or cultural work .
These are some of the most common work permit categories for musicians , but there are others that may be explored as well , depending on your specific activities and situation .
We are a band . Is there a work permit for a group ? The P-1B is for members of an internationally recognized entertainment group . For this , you are required to prove that at least 75 % of your members have been with your group for at least one year . The international recognition of the group can be proven through criteria that is somewhat similar to the O-1 requirements . Individual musicians performing on their own are not eligible for the P-1B .
And what if I am the primary artist but I have staff who help me ? For principal applicants who obtain a work permit , it may also be possible for the essential support staff to travel too . To qualify , your staff must have critical skills and a history of providing you with integral support that cannot be performed by another U . S . worker .
Catherine Glazer is an attorney practicing U . S . immigration law in Toronto and an international consultant for the Norwegian Refugee Council . She is the author of a research paper on the future of DACA , published by Rice University ’ s Baker Institute , and will be involved in proposing immigration reform to the Biden Administration through her participation in the ABS Conference and the CHF Immigration Policy Workshop . For further inquiries , Catherine can be reached at catherine @ cbglazerlaw . com .