Can I perform or record as a musician on a visitor or ESTA visa?
The Short answer to whether a visitor visa or visa waiver status is enough for a music professional to travel to the United States for business is… Probably NO!
Firstly, what is a visitor visa? It is a temporary visa that allows a foreign national to travel temporarily to the United States for business (B1), tourism (B2), or a combo (B1/B2). A B1 or B2 visa is issued by an immigration officer at a U.S Embassy or consulate abroad. In determining where the immigrant in entitled to a temporary visitor visa, the immigration officer will weigh the following factors:
Whether the applicant has a residence in their home country, which they do not intend to abandon;
Whether the applicant intends to enter the United States for a period of specially limited duration
Whether the applicant seeks to enter the United States for the sole purpose of engaging in legitimate activities relating to business or pleasure. When the officer doubts that the applicant will return to their home country after their trip to the United States, the application will be denied.
An immigrant will be issued a tourism B2 visa if they seek to enter the United States for tourism or family visits, medical reasons, to participate in social events, are dependents of a member of the armed forces, a dependent of a crewman, are signing up short term study, or is an amateur entertainer or athlete.
An amateur entertainer, including an amateur musician, may come to the United States using their B2 tourism visa without applying for any work visa if they will not be paid for performances and will perform in a social and/or charitable context or as a competitor in a talent show, contest, or athletic event. The amateur entertainer may have incidental expenses of their trip reimbursed, but they may not be paid for their performance. An amateur is someone who is not a member of the profession related with the activity and who does not get compensated on a regular basis for their performance. A performer who is normally paid cannot qualify for a B2 visa even if the performer does not make a living performing, or agrees to perform in the United States without getting paid.
An immigrant wishing to come to the United States for business purposes may do using a B1 visa. However, a B1 visa may not be used for the purpose of obtaining or engaging in employment while in the United States. A B1 visa can be used to engage in commercial transaction that do not involve employment in the United States. For example, a merchant may travel to the United States to take order for goods that are manufactured abroad.
A B1 visa may also be used to negotiate contracts in the U.S., to consult with business associates, to litigate, to participate in scientific, educational, professional, or business conventions, conferences, or seminars, or to undertake independent research. This means that as a music professional with a B1 visa, you may enter the U.S. to negotiate contracts, to participate in conventions for which you are not being paid, and to take seminars. While you cannot be paid for your time in the United States, a U.S. source may provide an expense allowance or reimbursement for expenses incidental to the temporary stay. Incidental expenses may not exceed the actual reasonable expenses that you will incur in traveling to and from the event together with living expenses that can be expected like meals, lodging, laundry, and other basic services.
Immigration provides additional guidance where the event in educational in nature. A B1 visa holder may accept “honorarium payment” and associated incidental expenses for usual academic activities like lecturing, guest teaching, or performing in an academic sponsored festival if the activities last no longer than nine days, payment is offered by an institution of higher education, a nonprofit organization affiliated with an institution of higher education, or a nonprofit or a governmental research organization. The payment must be for services conducted for the benefit of the institution or the entity and the B1 visa holder may not have accepted such payment or expenses from more than five institutions or organization over the last six months. This means that as a music professional, if you are being paid by a school, nonprofit, or government research institute to perform, teach, or lecture you may get paid and received incidental expenses tied to the trip.
Members of the entertainment profession may come to the United States with a B1 visa to participate in cultural programs and international competitions. A member of the entertainment profession includes not only performing artists like musicians, singers and dancers, but also other personnel like technicians, makeup specialist, electricians, etc.…
A cultural program is one where it is sponsored by the sending country. The performer will be performing in front of a non-paying audience and all expenses including per diem will be paid by the government of the sending country. If your country is sending a cultural act to perform in the U.S. to attract tourism members of the entertainment profession taking part of the event will be issued B1 visa by the U.S. embassy abroad.
A professional entertainer may also be issued a B1 visa if they are coming to the United States to participate in an international competition for which there is no remuneration other than prizes (money or otherwise) and expenses. A foreign musician may be issued a B1 visa if they are coming to the United States in order to record music, the music recorded will be distributed and sold ONLY outside of the U.S. and not public performances will be given.
A temporary visa is issued to an individual for a certain number of years depending on the reciprocity agreement that the U.S has with their home country. If you search the State Department’s reciprocity chart you will notice that a citizen of France will have a B2 visa that is valid for 120 months, a citizen of Vietnam for 12 months, and a citizen of Haiti for 60 months. Please keep in mind that you may not enter the United States and stay for the entire validity period of the visa. The valid period allows you to travel in and out of the United States. After each entry to the United States the U.S. Customs and Border Protection will issue an entry document I-94 Form that will state how long you are able to stay in the United States during that one visit. You may be have a period of three months, six months, or another period of time depending on your travel history and the immigration officer’s discretionary determination.
Some countries, mostly European, have the ability to travel to the United States without first applying for a temporary B1 or B2 visa because they may enter using the Visa Waiver Program (VWP). On the VWP an immigrant may enter the U.S. for tourism or business for 90 days of less. The travel must have a valid Electronic System of Travel Authorization (ESTA) approval prior to travel. The purpose of the travel must be permitted on a B visa. All the restrictions that apply to a B1 or B2 traveler also apply to an ESTA traveler.
If you are coming to the United States to pursue employment, you need the proper employment visa. Depending on your talent, work history, and connections you may qualify for a 1 year or 3 year visa. You may even qualify for your green card as a musician!