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COVID-19 Update on Talent Visas for Entertainers, DJs, and Musicians

COVID-19 Update on Talent Visas for Entertainers, DJs, and Musicians
By Justin M. Jacobson, Esq. and Pablo G. Velez, Esq. of Velez & Cipriano, PLLC

The last two years have been unpredictable, especially for live music, concerts, nightclubs, and any other large social gathering of people in any space. However, it is important for an entertainer to be aware of current visa processes, whether for a renewal or initial filing especially as national and international travel bans and restrictions are ending.

Similar to any job, a foreign national musical artist desiring to earn revenue within the United States must first obtain proper work authorization by applying for the appropriate visa with the United States Citizenship and Immigration Services (USCIS). For musicians, this law applies generally to any undertaking by the talent, including but not limited to performing at a night club, at a live musical festival or concert, or when performing any other paid live appearance, musical performance, sponsorship, and any other paid work.

How To Obtain Musician, DJ, Producer and Band Visas – All Musicians Need a Visa

In most situations, an individual may apply for either the O-1B and the P-1B visa status (depending on whether the artist is a solo act or part of a group, respectively). In the United States, the O-1B visa is available for an individual who possesses extraordinary ability in the arts, such as a musical performer. It is typically only appropriate for the musician who has made a mark in the particular field and has enough industry-wide name recognition to justify the visa’s issuance. To obtain this type of visa, the musician must apply to the USCIS and provide a formal written application that proves the requisite level of talent. If a musician or DJ, is applying for an O-1B, they must be aware that they, as well as any individual or business entity acting as the applicant’s agent of record, must submit a variety of information for the application. If the foreign talent has been nominated or received a prestigious industry award, such as a Grammy, then they are immediately qualified for this visa type. However, since that is a rare situation, musicians typically take the alternative route, which is displaying their achievements by fulfilling at least three of the USCIS’ established criteria.

In these cases, the talent must submit evidence that they previously played a leading role or were a headliner at a respected nightclub, musical venue, or festival, including information citing how the talent was part of the notable music festival or other live event. This evidence could be substantiated by presenting documents that demonstrates the musician’s participation in the event through event flyers, official press releases, as well as any published news and media articles about event or the series of events. The individual must also prove that they achieved national or internationally recognition for their music talent and achievement. In these cases, the entertainer can provide evidence that they were featured in major media publication, such as in a music newspaper or digital press article, in a trade journal, or in a magazine. For instance, a musician could provide articles of them being featured in general music and entertainment outlets as well as being profiled genre specific press outlets such as Billboard, Rolling Stone, NME, DJ Mag, Your EDM, The Source, XXL, Vibe Magazine, Pitchfork, Magnetic Mag, MixMag, Dancing Astronaut, or Noisey.

Differences Between The O-1A vs. P-1A Visa

Additionally, a talent can submit recommendation letters from notable writers and industry executives about their musical or other entertainment related achievements. In some situations, an individual can even present information that they generate a high salary or other significant income in relation to other musicians, as shown through executed contracts with musical and performance venues, talent bookers agreements and talent endorsement agreements. Also, a DJ or musical cat can provide information that a previous performance or record was a major commercial success or that it received critical acclaim. This factor can be demonstrated by including copies of concert sales or attendance receipts, any Billboard chart or any other major industry chart placements, the existence of motion picture and television music placement for the talent as well as any other information on the talent’s notable success related to their musical career.

While, the following is not an exhaustive list, it is meant to highlight some of the types of information that would fulfill the government agency’s criteria when an artist applies for U.S. work authorization. For instance, an artist or their representatives should compile some of the following information when preparing an application:

  • Copy of the talent’s passport “biographical information” page (including copies of any past issued O-1 and/or P-1 visas, if they exist);
  • Information on the talent’s current address;
  • Information on the talent current and all other phone numbers used in the last 5 years;
  • List Information on the talent’s current and all other social media platforms and handles used by them in the last 5 years (i.e., Twitter, Instagram, Facebook, Tik Tok);
  • List Information on the talent’s current and all past email addresses used by the talent in the last 5 year;
  • List of all secondary schools/college/universities attended by the talent, including each institution’s physical address and the dates of attendance;
  • List of all talent’s previous employment, if any, including the job address, job title, and dates of employment;
  • List of all of the countries that the talent has visited in the last 5 years; and,
  • List of information on the past 5 trips that talent made into the U.S., if any.

Specifically, an agent of record on behalf of a DJ or musical artist applicant must provide the following:

  • An Itinerary of all shows, gigs, and live and paid appearances for talent;
  • Copies of all contracts for each paid appearance included in the itinerary and payment rates;
  • The agent’s full name, company/corporate name, EIN (Tax/ID), address, phone number and email; and,
  • Information on the agent’s year of establishment and their current number of employee.

In addition to the above information, the following must also be submitted with a visa application:

  • Letters of reference from prominent industry individuals, such as producers, artists, journalists, and writers speaking on the talent’s achievement;
  • Copies of any digital, online, or printed press articles covering the talent’s achievements or providing reviews of the applicant from any major industry publications;
  • Copies of any online, digital or print press coverage from major industry publications covering the venues and/or festivals included in the itinerary;
  • Copies of promotional event flyers, advertisements and/or contracts for past and upcoming gigs at prominent concert venues or music festivals where the talent was a headliner or otherwise played a critical role; and,
  • Evidence of any national or international awards won by the artist, if any.

Timing and Application Processing under COVID-19

Since the government halted all visa operations in light of COVID-19, many industries have been experiencing severe delays, especially due to the extensive backlog in initial, as well as renewal visa applications. Therefore, when applying for a visa, it can take several months or longer to be processed by the government. To avoid being subject to the several months backlog for a visa, a talent should strongly consider using the Premium Processing option when filing with immigration to elicit a response within 15 business days of filing. While this option may be costly, if limited time restraints exist, this option may be the appropriate decision. Another factor to consider is the specific wait time at the talent’s local consulate. For instance, applying in Paris is not the same as Shanghai or Toronto, as each embassy has their own unique workload queues based on a variety of factors. Moreover, it is also important to factor in the standard 7-10 business days that it could take the visa applicant to receive the approved visa from the consulate.

Since there are two government agencies, the USCIS and the State Department, who are involved in the visa process, administrative delays must be accounted for when preparing to make a timely entrance into the United States. This is in addition to the time that is required for a visit to any local consulate. This is usually required because once a visa petition is approved by USCIS, the applicant must then appear at local country consulate to finalize the matter. Since these are appointment based, it is important to leave lead-time to schedule and have the consulate appointment to issue the visa in your passport.

Overall, it is crucial that all foreign musicians, DJs and bands as well as their talent agents and managers are aware of the time restraints and application requirements of a foreign work visa, especially as music festivals, nightclubs and other entertainment activities start again and as the global entertainment business continues its constant growth and expansion.

This article is not intended as legal advice, as an attorney specializing in the field should be consulted.

© 2022 Justin Jacobson Law, P.C. and Velez & Cipriano, PLLC