I am a musician. I was invited to play at a concert in the United States. Can I use the B-1/B-2 visitor visa to enter the US?
Likely not, if you are entering to play at a concert. Performers in arts or entertainment, coming to the US temporarily to perform services, normally cannot utilize the B-1/B-2 visitor classification, regardless of the amount or source of compensation.
This is because visitors under the B-1/B-2 category are not allowed to “participate in the US labor market,” which usually means performing skilled or unskilled labor. If you are a foreign national professional musician and enter the US to play in a concert held in the United States, one could say it displaces a US musician from performing for that concert, so a USCIS or consular officer may interpret this activity as something that interferes with the US labor market and must be done through a work visa, such as an O-1B or P-1B visa, for example.
There are few exceptions to this general rule. In certain exceptional cases, a musician may be able to enter the US on a B-1/B-2 visa to engage in music-related activities:
- A musician can enter the US on a B-1 visa if (1) the musician is entering the US to utilize recording facilities for recording purposes only; (2) the recording will be distributed and sold only outside the United States; (3) no public performances will be given.
- A professional musician may also enter the US on a B-1 visa to participate in international competitions, for which there is no remuneration other than a prize (monetary or otherwise) and expenses.
- A professional musician may enter the US on a B-1 visa to participate in a cultural program sponsored by the sending country, if they will be performing before a nonpaying audience, and all expenses will be borne by the foreign government.
- An amateur musician may enter the US on a B-2 visa to perform music in a social or charitable context, or as a competitor in a talent show or contest, or other competition, without compensation (however, the musician may be reimbursed for incidental expenses).
An amateur musician is defined as someone who normally performs without remuneration, and is not considered a member of the profession associated with that activity. If you are normally compensated for performing your music, you are likely a professional musician and may not qualify for the B-2 visa, even if you agree not to be compensated for your performance in the United States.
If you are a professional musician and wish to enter the US to play at a concert, with or without compensation, you may need to do so through a different visa that allows you to work, such as an O-1B, which is appropriate for individual artists of international renown (click here for more detail), or a P visa, appropriate for performing groups (P-1), members of exchange programs (P-2), and performers of culturally unique forms of art (P-3). These visas require you to obtain a consultation letter from the U.S. union covering the industry, which, in the case of many musicians, is done by the American Federation of Musicians (AFM). You can find useful information here.
If you are in doubt of what avenue you should pursue to obtain your pathway to perform in the United States, please do not hesitate to contact one of our experienced attorneys who can help.
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