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Nonimmigrant Options for Musicians

Written by Henry J. Chang

There are several nonimmigrant options available to Canadian musicians interested in working in the United States. These options are briefly discussed below:

B-1 and B-2 Visitor Status

In certain cases, it is possible for a musician to enter the United States as either a B-1 visitor for business or a B-2 visitor for pleasure. Under §214.2(b) of the INS Operations Instructions ("OI"), the following individuals may be classified as B-1 nonimmigrants if they receive no salary or other remuneration from a United States source (other than an expense allowance or other reimbursement for expenses incidental to the temporary stay):

  1. an alien entertainer otherwise classifiable as an H-1 nonimmigrant:

    1. coming to participate in a cultural program sponsored by his or her government;
    2. who will be performing before a non-paying audience; and
    3. all expenses, including per diem, will be paid by his or her government; or

  2. an alien entertainer, even though not of H-1 caliber, who is a resident or national of Canada or Mexico and is coming to the border area of the United States to participate in a long established religious festival or ceremony, or in a long established bi-national civic celebration.

The reference to H-1 in this context is somewhat confusing since entertainers are no longer eligible for H-1 status. The H-1B provisions previously referred to an alien "of distinguished merit and ability" who is to perform services "of an exceptional nature requiring such merit and ability". The Immigration and Naturalization Service had come to recognize that this applied to both professionals and persons who were "prominent" in their fields. However, entertainers were taken out of the H-1B category after April 1, 1992. The O and P visa categories were created to provide entertainers with a way to enter the United States. Nevertheless, the former H-1B standard of "prominence" is still relevant in determining eligibility for visitor status under the OIs.

Volume 9 of the Foreign Affairs Manual (Note 8.1-2 to §41.31) also provides for the entry of musicians under B-1, provided that the musician is coming to the United States in order to utilize recording facilities for recording purposes only, the recording will be distributed and sold only outside the United States, and no public performances will be given.

Although professional entertainers cannot enter the United States as B-2 visitors for pleasure, Volume 9 of the Foreign Affairs Manual (Note 10.6 to §41.31) states that amateur entertainers and athletes may enter to perform in a social or charitable context or to compete in a talent show, contest, or athletic event without compensation except for incidental expenses.

It should be mentioned that Canadians are visa-exempt for visitor visas so it is the Immigration and Naturalization Service and not the U.S. Consulate which makes the determination of eligibility. The Foreign Affairs Manual is issued by the Department of State and is not binding on the Immigration and Naturalization Service (which is operated by the Department of Justice). However, the fact that this activity is specifically permitted in the Foreign Affairs Manual should carry some weight.

H-2B Status

Although musicians are now precluded from the H-1B category, they may still apply for H-2B status. Alien entertainers who are not considered to have "extraordinary" ability or international recognition as "outstanding" are must use the H-2B category, rather than the O and P categories, which are set aside for top-level entertainers.

Although the H-2B category does not require a showing of prominence, it is a difficult category to work with since an alien seeking classification as an H-2B worker normally requires an approved labor certification evidencing that:

  1. unemployed, qualified U.S. workers are not available for this position in the region of the alien's proposed employment; and

  2. the employment of the alien will not adversely affect the wages or working conditions of U.S. workers similarly employed.

Special labor certification procedures apply when seeking H-2B status for entertainers. These procedures are addressed in General Administrative Letter No. 5-84 published by the Department of Labor in the Federal Register , Volume 49 No. 123 on June 25, 1984. However, a brief discussion of labor certification for entertainers appears in the general H-2B article, which is available here.

It should be mentioned, however, that Canadian citizen musicians may seek H-2B status to perform within fifty miles of the Canadian border without the need to obtain a labor certification. This is because the Department of Labor has pre-certified that qualified persons are unavailable in the Canada-United States border area (fifty miles into the United States, along the Canadian border) and that the admission of Canadian musicians in such areas for periods not in excess of thirty days would not adversely affect the wages and working conditions of workers in the United States who are similarly employed. The precertification with respect to musicians is applied to stagehands, drivers and equipment handlers coming to the United States in connection with the Canadian musician's employment. Where the Canada-U.S. boundary is within a body of water (such as the Great Lakes), the fifty mile area extends inland from the United States shore.

Apart from the Labor Certification, the employer must also establish that it has a temporary need for such a worker. This can be shown where the employer has:

  1. a recurring seasonal need
  2. an intermittent need
  3. a peak-load need, or
  4. a need based on a one-time occurrence.

For example, a nightclub which regularly books entertainment and which requires different performers on a frequent basis in order to satisfy customer demands and tastes could establish this temporary need. The need for each entertainer's skills is considered temporary because it is important in the entertainment business to provide a variety of talent. However, a nightclub with a continuing need for a particular type of entertainer would not be filling a temporary position.

Under the general law relating to the H-2B category, the initial period of stay is governed by the period of time that the temporary services are needed. This period must be reasonable in terms of the duties to be performed and cannot extend beyond an initial period of one year. Extensions of stay in increments of one year are possible. An H-2B worker cannot be continuously employed in the U.S. for more than three years. However, it is unlikely that the Immigration and Naturalization Service would extend an alien entertainer's H-2B status for such a long period of time.

O-1 Status for Aliens of Extraordinary Ability

This category is discussed in great detail in my O-1 article which appears in the U.S. immigration database. However, it will be briefly discussed here as well. O-1 status is available to aliens of extraordinary ability in the arts, sciences, education, business and athletics. O-2 status is available to aliens who seek entry to accompany an O-1 alien working in the field of arts or athletics and whose essential skills make them integral to the performance. O-3 status is available to dependents of O-1 or O-2 aliens.

For O-1 purposes, the "extraordinary" standard is defined differently, depending upon the alien's field of endeavor. For artists and entertainers (other than those in the motion picture or television field), the term "extraordinary ability" means only distinction. Distinction is a high level of achievement in the arts evidenced by a degree of skill and recognition substantially above that normally encountered to the extent that a person described as prominent is renowned, leading or well-known in the field of arts. Musicians are assessed using the standard of distinction.

O-1 petitions require consultations with an appropriate peer group (which could include a person or persons with expertise in the field), labor or management organization regarding the proposed work and the beneficiary's qualifications. The petitioner must submit such a consultation with the petition or show that an appropriate peer group, labor organization or management organization does not exist. "Peer Group" means a group or organization consisting of practitioners of the alien's occupation . Where a collective bargaining representative for the beneficiary's occupation classification is present at the workplace, this representative is the appropriate labor organization.

There is no specific limitation on the period of stay for O nonimmigrants as the initial period of stay can be for the time necessary to complete the event or activity or group of events or activities for which the nonimmigrant is admitted, up to three years. "Event" is defined as including an activity such as a scientific project, conference, convention, lecture series, tour, exhibit, business project, academic year, or engagement. Extensions of stay, to complete the event for which he or she was originally admitted, may be authorized in increments of up to one year.

P Status for Entertainers

This category is discussed in greater detail in the P-1, P-2 and P-3 articles.

P-1 Status

Within the context of the P-1 visa, the term "internationally recognized" is defined in Title 8 of the Code of Federal Regulations (the "Immigration Regulations") as a high level of achievement in a field evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that the person is renowned, leading or well-known in more than one country . This standard closely resembles the "distinction" standard applied to O-1 aliens in the field of arts (other than those in motion picture or television).

P-1 status is available only to entertainers who perform as members of an entertainment group (or are an integral part of the performance). An entertainment group consists of two or more persons who function as a unit. If a solo artist normally performs with the same musicians or singers, the act may still be considered an entertainment group. In contrast to the treatment of individual athletes under the P-1 category, individual entertainers are not eligible for P-1 status and must seek admission under the O-1 category.

The international recognition of the group is the controlling factor, not the international recognition of the particular entertainer seeking P-1 status. It is possible to obtain a waiver of the international recognition requirement for an entertainment group which has been recognized nationally for a sustained and substantial period of time, where "special circumstances" exist . A specific example of "special circumstances" is where an entertainment group finds it difficult to demonstrate recognition in more than one country due to such factors as limited access to news media or consequences of geography.

Seventy five percent of the members of the group must have had a sustained and substantial relationship with the group for at least one year and must provide functions integral to the group's performance . Exceptions to this one-year rule exist generally for an alien who, because of illness or unanticipated and exigent circumstances, replaces an essential member of a P-1 entertainment group or an alien who augments the group by performing a critical role.

No P-1 visa will be approved by the INS unless a consultation with the appropriate labor organization has been conducted . Unlike the O-1 regulations, there is no reference to "peer group" or "collective bargaining representative" for P-1 consultations. Advisory opinions from labor organizations address whether or not the alien or group is internationally recognized and whether or not the services to be performed are appropriate for an internationally recognized alien or group although a letter of no objection may be submitted by the labor organization in lieu of an advisory opinion.

P-1 entertainment groups may be admitted for the period of time necessary to complete the performance or event, not to exceed one year.

P-2 Status

The P-2 category covers artists and entertainers, including groups, who seek to be admitted through a reciprocal exchange program between a foreign-based and U.S.-based organization (including a management organization) which are engaged in the temporary exchange of artists and entertainers. The exchange of artists or entertainers must be similar in terms of caliber of artists or entertainers, terms and conditions of employment (such as length of employment), and number of artists or entertainers involved in the exchange.

However, only a few P-2 programs have been established. The American Federation of Musicians ("AF of M") has entered into a P-2 program with its Canadian counterpart which replaces its previous J-1 program.

An approved petition for an artist or entertainer under P-2 status shall be valid for a period of time necessary to complete the event, activity, or performance for which the P-2 alien is admitted, not to exceed 1 year.

P-3 Status

The P-3 category covers artists and entertainers, including groups, who will perform "under a program that is culturally unique." The final rules provide that P-3 classification may be given to artists or entertainers, individually or as a group, coming to the United States for the purpose of developing, interpreting, representing, coaching, or teaching a unique or traditional ethnic, folk, cultural, musical, theatrical, or artistic performance or representation. "Culturally unique" means a style of artistic expression, methodology, or medium which is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons. The artist or entertainer must be coming to the United States to participate in a cultural event or events which will further the understanding or development of his or her art form. The program may be of a commercial or noncommercial nature.

An approved petition for an artist or entertainer under P-3 status shall be valid for a period of time necessary to complete the event, activity, or performance for which the P-3 alien is admitted, not to exceed 1 year.

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