Is There A Showcase Visa Exception?

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

We have arranged for one of our foreign groups to perform a showcase at the upcoming APAP conference in New York. Will they need artist visas? Obviously, we’d like to avoid that time and expense. The artists are all from Europe and could enter as visitors under ESTA. Couldn’t we just say that the performance is intended to educate presenters and the US market about the group and is, thus, “educational”?

Nice try. Please see the bailiff on the way out to make arrangements to pay your fines and penalties. While visitors to the US are permitted to attend seminars or engage in “short courses of study”, the education must be for the benefit of the visitor, not the audience. When traveling through the demented kingdom of US arts immigration, never take a circuitous route through the fire swamp of cute arguments and clever schemes on the rare occasion when a straightforward path may actually present itself.

The official rule is and has always been that artists cannot perform in visitor status (which means either entry with an actual visitor visa or entry through the visa-waiver/ESTA programme.)  If an artist performs in the US (and does not have either a student (F) visa approved for “practical training” or a similar training-based visa such as a J or M), then the artist must have either an O or P visa. It doesn’t matter if the artist isn’t being paid. It doesn’t matter if tickets are free. It doesn’t matter if the audience is enthralled, inspired, impoverished, infirmed, intoxicated, or indifferent. Any performance in front of an audience triggers the need for an O or P visa.

HOWEVER, an artist IS allowed to enter the US in visitor and/or ESTA status and perform if the performance constitutes an “audition.” Several years ago, USCIS clarified that “showcases” at official booking conferences such as Arts Midwest, APAP, etc. could qualify for this exception provided certain conditions were met:

(1) The showcase cannot be open to the public (regardless of whether or not tickets are sold or free);

(2) The performance can only be for the benefit of registered conference attendees; and

(3) The artist(s) cannot engage in any other performances while in the US.

So, if your showcase is of the variety that are held in one of the ersatz performance spaces at the Hilton and open only to official, registered conference attendees with official, multi-beribboned badges, then you are in luck. On the other hand, if your showcase is of the kind that are held around New York City in an actual performance space where the general public will be attending, but APAP conference registrants can come for free, then your artists will need O or P visas. In other words, its not enough merely to call a performance a showcase—it must be an APAP-only showcase or it doesn’t count.

If you believe that your artists qualify for the showcase/audition exception, then I would still strongly recommend that each artist travels and enters the US with a signed letter from you, on your official letterhead, confirming their entry and departure dates and confirming that all of the above-conditions are met.


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