FYI, I saw this follow up referred to on rhys chatham's fb page :
How does the Soviet Soviet situation relate to last week’s SXSW contract dust-up?
Just last week, I wrote a post about the SXSW contract scandal. In talking about the “deportation clause” of SXSW’s invitation letter, I wrote:
“One of the quoted passages was background information for artists performing without an employment visa: ‘Accepting and performing unofficial events may result in immediate deportation, revoked passport and denied entry by U.S. Customs Border Patrol at U.S. ports of entry,’ which was immediately followed by links to the Department of State website and their own FAQ on visa matters. SXSW has explained that all they meant by this was to inform their artists about U.S. immigration law and what can go wrong if you break the law. Here they are more or less legally correct, so they are doing their artists an important service by being abundantly clear. I’ve worked in musician immigration for 20 years, and I never cease to be amazed by how blunt you have to be to get artists to understand what they cannot legally do.”
Case in point. Soviet Soviet was doing precisely what the much maligned SXSW invitation letter was attempting to caution them against doing. As monstrous as reports of CBP's handling of Soviet Soviet sound, it is clear that these artists were entering the U.S. intending to violate U.S. law. They were scheduled to play non-showcase events, and even after all last week’s fuss, they still did not understand: not getting paid does not mean you don’t need a visa. That they did not understand the law is, of course, unfortunately “no defense.” But while the law they were seeking to break has been pretty much unchanged since 1991 (so it’s not Trump), and all it takes is Googling “Do I need a visa to perform in the U.S.?” to get a bunch of generally accurate guidance, what happened to Soviet Soviet happens to some performer every week of every month and has been happening for 25 years. So something is not working and needs to change.
Two things, actually:
(1) The U.S. Department of State needs to change its procedures: The way the law works sets artists up to fail. It broadly demands that all performers enter the U.S. with employment-based visas (usually P or O visas), then carves out a number of exceptions to the rule, but fails to provide a reliable way to make use of those exceptions. At the very minimum the government needs to create a system that allows artists to seek an advanced determination of whether the details of their plans in the U.S. conform to the "showcase exception” (or any of the other various exceptions), and allows the artist to rely on that determination when they arrive in the U.S. This could be achieved by (i) guiding artists who wish to enter on an exception to avoid using ESTA (Visa Waiver), (ii) having artists instead seek the affordable and simple B1 visa (“business visa”), (iii) allowing a U.S. consulate the chance to determine whether the exception applies, and (iv) if it does apply, requiring that U.S. consulates annotate the artist’s visa to indicate the applicable exception and circumstance for which the visa is issued. That way an artist could get a cheap visa to “PERFORM AT SXSW,” they would arrive in the U.S. reasonably confident that CBP would understand they have been determined admissible, and they would have a better chance of understanding the limitations of what they can and can’t do while in the U.S. (how this change would work legally is detailed in Tamizdat’s White Paper on Artist Mobility to the United States; contact us for more information on this effort).
(2) In the meantime, artists, managers, presenters, and agents need to better understand how the law works, and stop trying to skirt around the law to artists’ detriment. So let’s break this down:
To understand how a law works, it’s best to start by understanding the policy that underlies the law. In this case, the U.S. artist visa laws were written for Congress by the artists' labor unions in the late eighties with the intent of protecting the interests of U.S. labor—American performing artists. So let’s do a hypothetical: imagine a group of lumberjacks in British Columbia wanted to enter the U.S. to log in Washington State; naturally the U.S. government would say “no way, not unless you can get a work visa first.” But these loggers reply “well we like logging so much, how about we do it for free! That’s ok, right?” No, it’s not, and in fact from a labor standpoint, the fact that they are working for free is WORSE than them getting paid: not only are they taking the jobs of individual American lumberjacks, they are generally depressing the value of the labor of U.S. lumberjacks! So from a labor standpoint, foreign musicians playing in the U.S. for free is anything but harmless. (Artists can get visas to perform in the U.S. of course; but they have to prove that they are eligible for an O or P visa, which is issued when the artist’s importance to American business or cultural interests is deemed to outweigh their threat to labor interests.)
So that’s the policy. Broadly speaking, this is how the legal analysis is applied: If a performer who is not a U.S. citizen or national or permanent resident wants to perform in the U.S. under any circumstance, he or she must enter the U.S. with an employment visa—unless one of a limited number of very narrow exceptions apply. There are five important “exceptions” under which an artist may enter the U.S. as a “visitor” (meaning with a B1 or B2 visa or under the ESTA / Visa Wavier Program) to perform:
The Industry Showcase Exception: If the principal purpose for which an artist’s audience is in attendance at ALL the artist’s performances is not merely for the sake of being entertained, but rather to consider hiring the artist at a future date, the artist may enter the U.S. as a visitor. Note that if the audience is paying a fee to see the artist, then it is generally presumed that the artist must be rendering a service, so the event is not be a bona fide industry showcase.
The Cultural Exception: If the artist (1) is coming to the United States to participate only in a cultural program sponsored by the sending country; (2) will be performing before a non-paying audience; and (3) all expenses, including per diem, will be paid by the artist's government, the artist may enter the U.S. as a visitor.
The Academic Exception: If the artist is coming to the U.S. to engage in (1) activities that last no longer than nine days at any single institution or organization; (2) payment is offered by an accredited institution of higher education (meaning a real college or university); (3) the honorarium is for services conducted for the benefit of the institution; and (4) the artist has not accepted such payment or expenses from more than five institutions over the last six months, the artist may enter the U.S. as a visitor.
The Recording Exception: if (1) the musician is coming to the United States in order to utilize recording facilities for recording purposes only; (2) the recording will be distributed and sold only outside the United States (generally now interpreted to mean "not pursuant to a contract with a US label, publishing company, or distributor”); and (3) no public performances will be given, the artist may enter the U.S. as a visitor.
The Amateur Exception: An amateur may enter the U.S. as a visitor to perform. An amateur is a person who is not a member of the profession associated with that activity and normally performs without remuneration (other than an allotment for expenses).
VERY IMPORTANT CAVEAT: It’s critical to remember that the CBP officer at Passport Control makes the final determination of who may and who may not enter the U.S., so even if an exception does apply—or you think it does—if the officer finds reason to believe the exception does not apply and the artist should have obtained an employment visa, he or she will deny the artist entry.
I’m not saying this is a good system, but we need to work within it, and we need to work together to change it. For more information about Tamizdat’s work to improve the U.S. artist visa system, please contact firstname.lastname@example.org.
And if SXSW doesn’t post a “we told you so” it’s a credit to their restraint.
(Matthew Covey & Will Spitz, Tamizdat)