US Visa and Immigration Questions

What to know before you come to PASIC

Linda Rose is an attorney and a musician in Nashville, Tennessee. She is the managing member of Rose Immigration Law Firm PLC. Given her firm’s location, Rose focuses primarily on immigration issues in the music and entertainment industry. The firm also handles immigration work for international corporate transfers and in higher education.

Rose holds a nationally-elected seat as a director of the American Immigration Lawyers Association. She is listed on the bar register of preeminent lawyers, is an adjunct professor of law at Vanderbilt University Law School, and has consistently been named by the Business TN magazine among the state’s top lawyers.

Rose is also a PAS member and has lectured at PASIC on several occasions. She plays jazz vibraphone, African xylophone, and hand percussion and leads the Rose on Vibes Quintet. (see www.roseonvibes.com). She has traveled to Ghana, Africa, multiple times to pursue her love of the gyil (African xylophone), percussion and world music.

She can be reached www.roseimmigration.com or lroselaw@roseimmigration.com.  Below, she answers some of the most common questions musicians and foreign students ask.  She will update this page regularly with more information.

Disclaimer:  The information provided to PAS on its website should not be construed as definitive legal advice pertaining to your case.  For particulars concerning your personal immigration issues, you should consult with an immigration attorney.

PASIC FAQ

I'm an F-1 student at a U.S. university and about to graduate. Are there any limitations to Post-Completion Optional Practical Training?

Just to clarify, Post-Completion Optional Practical Training, known as OPT, is authorization for an F-1 student to work, usually for one year, after completing college studies. You must be in possession of an employment authorization card, which takes about 90 days to receive from U.S. Citizenship and Immigration Services (USCIS). Once you receive the card, you must work in your field of study. So for a graduate from a music college or music program, this means working in a music-related job.  Over the past few years, the OPT rules have gotten stricter, but because they are overseen by the international students office or the dean of students office of the school from which the student graduated, there is some flexibility. The general rule is that to qualify for OPT, the student must work regularly. The student cannot accrue more than 90 days of unemployment during the OPT period. Although periods of up to 10 days between jobs will not count toward unemployment, the student must be careful to avoid long gaps between gigs.

After I complete OPT, what are the options for staying in the United States?

Those who arrived as international students, usually holders of an F-1 visa, should start exploring their immigration options early if they hope to pursue music careers in the United States. There are several categories of temporary or nonimmigrant visa status available to musicians and individuals in the music-related professions: O-1 Extraordinary Ability, P-1 International Groups, P-2 Reciprocal Exchange, P-3 and Q-1 Culturally Unique, H-1B Specialty Occupation, and J-1 Management Trainees.

Do I have to start out as a student to be able to eventually work in the U.S.?

Absolutely not.  You might easily qualify for H-1B, O-1 or P-1.  So read on . . .

I hear a lot about people working on H-1B and O-1 visas. What’s the difference between the two?

There’s a huge difference between them. The H-1B visa category is for those who have a four-year college degree or equivalent and who will perform a job that requires that degree. USCIS must consider the job a “specialty occupation.” A typical example is a person who earns a bachelor’s degree in accounting and is hired by a U.S. employer as an accountant. It’s not so clear-cut for musicians. Even though the academic study of music is very complex, the immigration service doesn’t consider the position of musician to be a “specialty occupation” for which a degree is required. In other words, in the view of the immigration service, you do not have to have a college degree to be a musician. So, earning a degree in music performance doesn’t qualify you for an H-1B per se.

The H-1B visa category is a perfect fit for other music-related professions, however. Say, for example, you earn a bachelor’s degree in music management. This is considered appropriate training for a position with an artist management company. And it might serve as the degree for a musician who will lead and manage his own band.

The O-1 visa category is for “artists of extraordinary ability” and as such has strict and limited applicability. An artist like Elton John would definitely qualify for O-1. But you don’t have to be an Elton John to fit into this category. I’ve obtained O-1 classification for session musicians, backup singers, and “unknown” artists whose popularity and renown are limited to their own countries. It’s rare that a recent college grad would qualify for O-1 status, but it’s not unheard of. In fact, I’ve done O-1 visas musicians who had graduated only the year prior (at the end of OPT). So don’t immediately dismiss this category. Here’s how it works.

For O-1, you have to be recognized for your greatness as a musician, composer, arranger, or whatever your area of expertise is. A Grammy Award nomination alone would qualify a foreign musician for O-1. But because it’s relatively rare that a person has been nominated for or received a Grammy, a Dove, or a similar music-industry award, the immigration service created an alternative list of criteria.

The simple way to describe the alternative criteria is this: you must be very, very good at what you do, and well known for it. Evidence of national and international awards or of performances at significant venues, reviews in music journals, and recordings listed in Billboard or on relevant music charts are the most common types of evidence needed to establish O-1 eligibility. Then of particular importance are the opinions of experts in the field of music. Usually provided in the form of a letter, these letters must be carefully drafted within the framework of the immigration requirements to document a musician’s extraordinary skill and contributions to the industry. Letters of reference may also confirm the significance of any awards or performances. You often need supporting documents, including a nomination letter, photographs, reviews, news articles, tax returns, royalty payment receipts, and publishing or performance contracts. If you haven’t thought about it ahead of time, getting these documents can be difficult. I usually recommend that clients get all the documents your mother kept for you.

Once I have an H-1B or an O-1, can I work anywhere I want? And for how long does the visa last?

The H-1B is employer driven, based on a true employer-employee relationship. This means you are sponsored by that employer and you must work for that single employer. The employer must pay the prevailing wage. The H-1B is limited to a total of six years, which can be granted in three-year increments. After six years, the H-1B worker needs to have another visa category in the works, such as permanent residence, or the workers must depart the United States. Depending on the timing of the permanent residence process, additional H-1B extensions might be allowed. The requirements are very specific, and I discuss potential exceptions with clients based on their individual circumstances.

The O-1 for musicians does not require an employer-employee relationship in the traditional sense, but there must be a U.S. “sponsor” who takes on the responsibility of filing the petition and keeps track of the individual while he is in the United States. The initial petition requesting O-1 status has to identify the various venues where the musician intends to perform and be paid by the various venue “employers,” and these venues have to authorize the O-1 sponsor to file the petition on their behalf. It’s a bit complicated, but as an attorney, I handle these kinds of matters for musicians and their sponsors. Provided there is an itinerary to support that period of time, O-1 status can be granted for an initial period of three years and can then be renewed in one- to three-year increments. The O-1 is perpetual, so it can be renewed as many times as necessary without limit. If someone is classified with O-1 status, his “essential support staff”—such as a manager, band members, background vocalists, roadies, costume directors, and lighting and sound engineers—can accompany the O-1 artist as O-2 support staff.

You also mentioned P-1, P-2, P-3, and Q-1. What are these categories?

P-1 International Groups can serve as an alternative to an O-1. It can be costly to process an O-1 visa petition for the bandleader, along with an accompanying O-2 visa petition for the entire band, orchestra, performance group, and support staff. And not every group has an O-1 member. Congress recognized this possibility and created the P-1, a slightly less rigorous visa category for bands and groups.

The P-1 visa category covers the entire group. The group, however, must have some international renown and perform abroad at significant venues. The band that sponsors the foreign musician can either be a foreign band or a U.S. band. What’s important is the international reputation of the band.  Although the members of U2, for example, would likely qualify individually for O-1 visas, it would be impractical to file multiple O-1 petitions when a single P-1 petition will cover the In individual musician or the entire group for a tour in the United States. A drawback to the P-1 is that it is issued in only one-year increments, provided that there is an itinerary to support the one year. But it is, however, like the O-1, renewable without limit.

Now, let’s assume that the artist or band is not internationally renowned but wants to develop a career in the United States. An alternative is the P-3 culturally unique visa category. This visa has three basic requirements: (1) an expert opinion that the group is skilled in presenting a culturally unique art form; (2) evidence in the form of reviews, photographs, and/or articles that the group is culturally unique; and (3) evidence that the group is traveling to the United States for a culturally unique performance. This standard is broadly and liberally interpreted by the immigration service, and the visa category provides an excellent option for musicians and artists who are otherwise not eligible for a visa to perform in the United States. A perfect example of a P-3 group would be Ladysmith Black Mambazo, the South African a capella group that sings traditional tribal music.

Another option for those who play culturally unique music is the Q-1 visa. It was created to promote artistic cultural exchange. Artists who demonstrate and teach their unique art form in public settings may qualify for Q visa status. The cultural exchange venue or program must be designed to exhibit or explain the customs, history, or traditions of the artist’s home country. An African musician who plans to perform at a cultural community center is a good candidate for a Q visa.

The P-2 Reciprocal Exchange is a bit different.  P-2 status is useful for musicians who are coming to the United States to perform under a reciprocal-exchange program. To my knowledge, there is only one such program in effect for musicians: the American Federation of Musicians (AFM). Under that program, musicians who are members of the AFM of Canada can request a P-2 classification to tour in the United States.

If I don’t qualify for these visas, will working without authorization affect my future immigration applications?

An individual who works without authorization is deemed to be out of status. If you are an F-1 student and you take a job without work authorization, you have violated your status. You could be deported for working without authorization. A more likely scenario is for the F-1 student to seek “reinstatement,” but this is granted only in narrow circumstances. This type of status violation can be cured by leaving the country and re-entering on your F-1 visa. But do not work without authorization just because it can possibly be cured. Once you violate status, you tread on dangerous territory such as potential deportation and future visa denials.

I should note that even if you have a work-authorized visa status, you can violate your status. If you are an O-1 musician, for example, but have a side job working as a waiter In a restaurant on weekends, you have violated status. This Is so because O-1 status for a musician allows you to work only as a musician. Like the F-1 student, the O-1 musician would have to leave the country and re-enter on an O-1 visa to cure the status violation. And as a side note, an O-1 musician or F-1 student who overstays status can be subject to deportation.

Repeated status violations can certainly affect eligibility for a visa in other categories as well as for permanent residence. Avoid any type of status violation and status overstay. Play it safe. If you’re a student, consult with the foreign student adviser at your school. If you’re about to graduate, consult with an immigration lawyer. The time and financial investment are well worth it rather than facing the consequences of going down the wrong immigration path.

I heard there's a visa for giving presentations and performances at educational institutions in the US (or was it universities only?). I also heard Canadians are exempt from this type of visa. What's this all about?

What this question is referring to is the B-1 visa that allows musicians to enter the country to perform at university settings (public and non-profit higher education institutions and affiliated organizations). But it’s not a carte blanche to enter the U.S. and play the college circuit.  There’s a limit.  And the limit is no more than 9 consecutive days at any one institution and no more than 5 institutions in a six month period.  Also, the institution has be a non-profit college or university or affiliated with such an institution.  You’ll be surprised that most, if not many, universities and colleges are in fact not-for-profit.  You’ll find, too, that many university administrators are familiar with this aspect of the B-1 visa that promotes foreign entertainment on U.S. campuses.

As for the visa a requirement:  Canadians are visa-exempt but would still be bound by the rule. Same goes for people form the 35 +/- countries that are part of the visa waiver program.  Bear in mind, when you enter on visa waiver, you can only remain in the U.S. for 90 days; you must then leave the country.  No extensions or change of status are allowed.  If you’re from a visa waiver country and need to be here more than 90 days, you should apply for a B-1 visa at the U.S. consulate.  Be prepared. It’s not always easy!

For those of you with a penchant for learning, below is the regulation from the Department of State Foreign Affairs Manual that allows artists to enter the U.S. in B-1 visa status to play the university circuit.  It’s pretty cool that this is available because most of the other visa categories for musicians are much  more complicated.  So if the university scene is where you’re making your living, this might (might) be a simple visa solution.  (Now, that’s an oxymoron if I ever heard one: a simple visa solution).

9 FAM 41.31 N11.2 Honorarium Payment
(CT:VISA-1034; 09-24-2008)
INA 212(q) provides that a B-1 nonimmigrant may accept an honorarium payment and associated incidental expenses for usual academic activities (which can include lecturing, guest teaching, or performing in an academic sponsored festival) if:
(1) The activities last no longer than nine days at any single institution or organization;
(2) Payment is offered by an institution or organization described in INA 212(q);
(3) The honorarium is for services conducted for the benefit of the institution or entity; and
(4) The alien has not accepted such payment or expenses from more than five institutions or organizations over the last six months.

An artist is touring the U.S. on a P-1 visa (for groups).He has been invited to present at PASIC and represents a European drum company. Can he man a booth to sell and present under a P-1 Visa?

If someone is on P-1, his or her activities are already pre-determined by the underlying petition that qualified him for the P-1 visa.  Having said that, attending PASIC should not be considered a violation of the P-1, as long as it doesn’t interfere with his performance schedule as indicated on the visa petition.  Demonstrating music technique and presenting at PASIC (unpaid) likewise would probably be considered permissible. But what would be better is if the P-1 petition could be structured to factor those additional activities into the P-1 status.  That way there would be no question: The artist remains in status.

As for selling products while on the P-1 tour . . . well, that gets a little stickier.  It typically would not permissible for him to sell products while on a P-1 tour.  I say this because selling products is a form of work not contemplated by the P-1 petition and I don’t think sales work reasonably could be factored into the petition.  So, in short — ok to attend PASIC, ok to present, but not ok to work in a sales capacity.

Let’s take it a step further.  Let’s say the artist is on a B-1 to perform at qualified academic institutions.  My answer would still be the same, unless working at PASIC to sell drum kits had been disclosed on the visa application.  If he applied for the visa as part of a group touring the U.S. on the college circuit, it is highly unlikely the visa application would have included sales work taking orders for drum kits at PASIC.  So, even under this circumstance — ok to attend, ok to present, not ok to sell.

An artist who is endorsed by a mallet manufacturer wants to come to PASIC as a business visitor (B-1) to sell mallets and take orders for drum kits.
Taking orders while in the U.S. as a business visitor is a perfectly acceptable activity.  Selling mallets on-site is not.  The classic case involves a tailor from Hong Kong who comes to the U.S. to take customer measurements, returns to Hong Kong to make suits, and ships the suits to the U.S.   The drum kit orders fit that scenario.  But selling mallets on-site falls outside the scope of permissible business visitor activities.  There might be some alternative way to structure his activities whereby the orders are taken at PASIC and the mallets are shipped to the purchaser.