About US Visas and SXSW
In answer to visa questions, this article below and the tips outline many issues. Please understand that as the SXSW rep, I can NOT deal with any visa problems or inquiries beyond this information below.
If you are travelling to the US to attend a convention, for business meetings or pleasure, you do not need a visa (so long as you are not earning money, not working with a performing artist playing in the US or not staying over 90 days). For Australian & NZ citizens, the Visa Waiver program is in effect. For those going to Canada, it's a different story, more relaxed but to get into the US from Canada, you still have to conform to all US Immigration requirements.
Musicians performing for pay, or in a public venue whether paid or not must obtain a P1 Visa. If the artist is performing for a person or entity that supplies hotel, airfare or other consideration, it is considered earning and a P1 visa must be obtained. Details at US Government site.
New Major Change to Visas into US Starts January 12--You Could be Denied Boarding!
The United States will make visa-free foreign travellers (including Australia and New Zealand) provide electronic information about themselves and their trip from 12 January, 2009. The U.S. Department of Homeland Security (DHS) announced the tighter rules under the the Electronic System for Travel Authorization (ESTA), a new online system that is part of the Visa Waiver Program (VWP) and is MANDATORY!
Once ESTA is mandatory, all nationals or citizens of VWP countries (including Australia and New Zealand) who plan to travel to the United States for temporary business or pleasure under the VWP will need to receive an electronic travel authorization prior to boarding a U.S.-bound airplane or cruise ship. Currently, citizens of VWP countries complete a written I-94W form providing basic biographical, travel, and eligibility information while en-route to the U.S. With ESTA, VWP travellers will provide this information online prior to departure for the U.S. ESTA will determine if an individual is eligible for VWP travel, and if such travel poses any law enforcement or security risks. ESTA applications may be submitted at any time prior to travel, and once approved, will be valid for up to two years or until the applicant's passport expires, whichever comes first. Authorizations will also be valid for multiple entries into the U.S. To facilitate the authorization process, DHS recommends that ESTA applications be submitted as soon as an applicant begins planning U.S.-bound travel, and not less than 72 hours prior to travel. On 01 August, the department will begin to accept voluntary applications through the ESTA Web site at https://esta.cbp.dhs.gov. Until ESTA is mandatory for all VWP travellers, however, ESTA applicants will also still need to complete an I-94W form en-route, for presentation at a U.S. port of entry.
SXSW makes an enormous effort to get all invitations out to international artists during the month of December. They make this effort to give artists the opportunity to start applying immediately for work visas within the required 90-100 day turnaround time. The processing time for petitions filed without using the fast-track program can be anywhere between 30 and 150 days, depending on various factors.
All visa applications must be made directly with the US Consulates or Embassies in Australia or NZ. A nonimmigrant visa application can only be filed at a consulate after the petition that was filed by a US entity, in which the entity, the US based "immigration agent" or a US attorney has received notification that the petition has been approved by the U.S. Citizenship and Immigration Services (USCIS). The USCIS was formally known as the Immigration and Naturalization Service.
Visa Tips
Do not underestimate the costs, the challenges and the time involved in securing US work visas so act immediately you receive your invitation. We recommend you seek informed advice from one of the three agencies listed in the invitation: RAZCo Visas in NYC, Tamizdat in Prague/NYC and Global Access Immigration Services in Los Angeles. (contacts below). As examples of costs, charges by agents in the US range from US$750-US$2500 per group on average (not including consular and filing fees).
If you apply for a visa with less than 90 days turnaround you may have to pay a $1,000 premium charge to the USCIS authorities.
US Department of Homeland Security regulations require that, as of October 26, 2004, all overseas posts collect finger scans from people applying for visas. As finger scans can only be collected in person, this will mean that all visa applicants will be required to apply for a visa in person through a prearranged appointment at their relevant Embassy or Consulate.
From October 26, 2004, all citizens from the 27 Visa Waiver Program countries seeking to enter the U.S. for temporary business or tourism/pleasure (B status), without obtaining a visa stamp, will be required to present a machine readable passport.
Visa specialists for the US include:
RAZCo Visas
Ron Zeelens, Esq.
254 West 54th Street,
14th Flr.
New York, New York 10019
Phone: 212-757-1289
Fax: 212 586 5175
Email: ron@razcovisas.com
Tamizdat
Matthew Covey
P.O. Box 20618
New York, NY 10009
Phone: +1.212.260.8444
Fax: +1.413.513.1157
Mobile: +1.646.327.0885
Email: matthew@tamizdat.org
Global Access Immigration Services, Inc.
Wyatt Miller
5657 Wilshire Blvd., Suite 390
Los Angeles, CA 90036
Phone: 323-936-7100
Fax: 323-936-7197
Email: wyatt@globalaxs.net
Immigrant song
How US terror policy is ruining your summer concert season
By Jason O'Bryan
You, my young British friend, start a band. You choose a name -- something odd, slightly unsettling. Your three-piece practices diligently. Local fame soon gives way to regional fame. Elated, you hear yourself on British radio. You cut a CD and it gets a lot of buzz on American music blogs. Since you're doing well in your home country, you decide to take advantage of the huge US market and go on tour. Your bassist keeps saying you can't get on MTV by playing clubs in Manchester.
You book shows all over the States, buy plane tickets, and apply for a visa, which they say will take 10 weeks. Twenty-two weeks later, you receive only two of three visas when you find out that your drummer has a name similar to that of a possible al Qaeda operative from Qatar, a country to which he's never been. Homeland Security is now on the case, no one in the American government answers your questions, and you wait another month -- and hear nothing. You miss your kick-off show in New York, then more shows pass, date by date, and your manager cancels the rest of your tour. You apologize to fans on your MySpace page, comment with thinly veiled hostility about the absurdity of the process, and shake your fist west through the morning rain, cursing the day you ever tried to deal with the dispassionate labyrinth of United States Citizenship and Immigration Services (USCIS).
In the past two years, news has come out of the music world with disarming frequency about artists being forced to postpone or cancel shows because of visa troubles. M.I.A, Rodrigo y Gabriella, Amy Winehouse, Klaxons, the Mystery Jets, New Model Army, You Say Party! We Say Die!, and the Young Knives are just a few highly publicized examples of musicians -- successful and struggling, popular and unknown -- who have tried to brave the system, and failed.
The situation has not passed unnoticed by music writers and bloggers, who tend to respond with hyperbolic outrage. "The front line of America's border system," wrote Spin magazine this past August, "has again spared us citizens the horrors of another evildoer attempting to breach our sacred grounds: Lily Allen." Similarly, Pitchfork Media responded to the visa denial of Canadian duo Handsome Furs, facetiously proclaiming, "Three cheers for the United States, keeping freedom-hating, free-health-care-receiving heathens like Handsome Furs out of our beautiful land."
The problem, of course, is both broader and more nuanced than just musicians trying to get visas -- sometimes succeeding, sometimes not. While this story focuses on the plight of overseas musicians and how their problems diminish the US culturally, actors (like Sanjay Dutt of India), filmmakers (like Mahamet-Saleh Haroun of Chad, who missed an April screening of three of his films at Harvard), and student/athletes (like basketball player Bol Kong, originally of Sudan, though he has lived more than half his life in Canada) encounter the same fate. The endgame is that, in the name of making ourselves safer, we may only be further isolating ourselves from a world that already views us with suspicion.
Glam-rock shredder or dead terrorist?
There are some, like David King, director of client relations for Traffic Control Group -- a company with offices in New York and London that specializes in obtaining work visas for traveling artists -- who insist the troubles are overblown. "It really isn't as bad as people think it is," he says in a telephone interview, pointing out that the number of problem instances are statistically low. "You can't generalize and say, 'Here's the reason that bands aren't getting into the United States.' There are all sorts of reasons. And each [band] would probably have a different reason."
King is right in that there are myriad reasons why a band would have what gets reported in the press as "visa difficulties," but the examination of said reasons neither sedates concerns nor tempers outrage.
Consider the case of the French group Fancy, which tried this past March to play with Justice on the MySpace Music Tour. Three of the members got their visas in February, but the guitarist's visa was withheld because his name, Mohamed Yamani, is similar to that of Abu Mohamed Al Yamani, a reported al Qaeda envoy in Algeria. Never mind that one is a glam-rock shredder and the other an international terrorist, and more oddly, that the latter was killed in 2006. When the bells go off, Homeland Security has to get involved. Fancy's problems were resolved in late March, but only after the band missed 18 of 20 scheduled US dates.
Equally absurd is the now-famous case of Rodrigo y Gabriella. The Mexican guitar duo tried to get visas in March 2007, but had similar problems when Rodrigo Sanchez found his name is shared by a criminal on a Mexican wanted list. There is, as of this writing, no mechanism at US consulates to prepare for the contingency that more than one person in Mexico may be named Rodrigo Sanchez, and the duo was forced to cancel eight sold-out shows, according to Spin magazine, to the lost-revenue cost of about $65,000.
Mistaken identity is just one of many problems. Scottish indie-pop group the View had to cancel a tour in April 2007 because frontman Kyle Falconer has a recent conviction for cocaine. If you have a criminal record of any kind, you are immediately and forever disqualified from the usual visa process and need a "waiver of inadmissibility," a separate process adding up to more time, and more bureaucracy.
Or maybe you simply haven't been around long enough, as was the case with British nu-rave group Klaxons, who in October 2006 had to cancel a tour because the "P1" visa classification -- for non-immigrant entertainment workers -- arbitrarily stipulates that bands must be together for one full year before coming to America. Such provisions fail bands that have enjoyed the kind of sudden success that the Internet can now easily create.
Canadian group You Say Party! We Say Die! encountered a tragicomedy of errors; first, a technicality involving their petitioner (the necessary American co-sponsor for the visa, in this case their booking agent, as foreigners are not allowed to petition for themselves) needed to be resolved, which eclipsed their proposed East Coast tour. Then, they filed the wrong version of a recently changed form and were in danger of missing their West Coast dates, as well. Not wanting to disappoint US fans or their new label, they tried to cross the border anyway (saying -- falsely -- that they were en route to a recording session in LA), got caught in a border inspection, and now bassist Stephen O'Shea (who was doing the talking) is banished from the country until 2011. They filed an appeal within a month, and to date haven't heard anything more.
British underground-rockers New Model Army have come to the US six times since 2002, and had no reason to assume they'd have a problem going back. The USCIS Web site notes that the process takes 10 weeks, so when filing for their September 2007 tour, the band's manager, Tommy Tee, decided to apply a full six months early, in March 2007, just in case. And, as he had heard the horror stories of others' visa troubles, he additionally hired King's Traffic Control Group for professional guidance.
The band received no word on their visa status, however, until late July 2007, when the government informed them that a technical question involving their petitioner needed to be resolved. Tee answered immediately, and after six more weeks of silence, began to get nervous. On September 8, 2007 -- six months after the initial petition had been filed, and three days after the tour was supposed to start -- Tee received word that USCIS had rejected the application for the same technicality that Tee thought had been resolved in July.
Specifically, USCIS couldn't determine whether the record label petitioning for New Model Army was an agent or an employer. "Why would you reject it because of that?" asks Tee, his incredulity still fresh. "Everything was done [by Traffic Control Group] in exactly the same way it's been done for 25 years. This was the first rejection that Traffic Control has had for that reason ever, and they've been doing this for 25 years."
It's tempting, perhaps even easy, to see New Model Army's story as an unlikely confluence of events. They didn't pay the extra $1000 that would have expedited their application, and there was a mix-up over an unresolved question that had to be answered -- perhaps that sent it back to the bottom of the pile, or perhaps the specific USCIS worker who looked at it was paranoid or overworked or simply didn't care.
Are the music bloggers over-reacting, or are they right to think that USCIS is Orwellian about granting visas to visiting artists? The middle-ground view is that the system works, theoretically, but when something -- anything -- goes wrong, the wheels go off the wagon . . . and there are hundreds of things that can go wrong.
Form I-129, Section 4a, Part Q
When musicians have to cancel shows because of "visa issues," most often it's not that their applications are denied, but that the process just takes too long. For immigrants looking to establish residence here, long delays are a major inconvenience, but for a band with committed tours and dates and tickets sold, it's potentially fatal, a humorless Catch-22: you can't get a visa until you book tour dates, but the visa process itself takes so long that there's a good chance you will miss them.
These problems have only really started in the past five years, even though non-immigrant entertainment visas -- the O and P classes of visa -- have remained fundamentally the same for more than a decade. The O1 visa is for individuals with "extraordinary ability in the arts," the P1 visa is for groups with extraordinary ability, the P2 visa is a rarely used "cultural exchange," and the P3 is for artists with "culturally unique" talents (say, for example, a Senegalese dance troop).
The current laws were enacted in 1992, when lawyers for the American Symphony Orchestra League, with the help of Jack Golodner (then-president of the AFL-CIO) and Senator Ted Kennedy (then, as now, on the Senate Immigration Subcommittee) worked for nine months to forge an appropriate political compromise that was palatable to labor, the arts, and the government.
Jonathan Ginsburg, one of the immigration lawyers involved in crafting the current law and co-author of a Web site dedicated to helping touring artists with visas (artistsfromabroad.org), said in a telephone interview from his office in Virginia, "The O and P classes have worked. The problem is that there are other elements in the system that have really broken down, that make life much more difficult."
Today, applying for a non-immigrant work visa requires a dense alchemy of time, money, and bureaucracy -- like getting a passport from the Stazi, or perhaps renewing your driver's license in hell.
First, because labor was brought in on the initial compromise, all petitions must include a consultation with the appropriate American labor organization: musicians must consult with one group, technical and craft personnel must consult with another, etc. The labor group then responds with either a letter of objection or no-objection, which is merely advisory and has no official bearing on USCIS, but -- regardless of the ruling -- costs between $200 and $350 (with an extra $50 to $250 to get it within 48 hours).
Then, the musicians and their crew send in two separate I-129 forms, which cost $320 each. USCIS offers a service they've dubbed "Premium Processing," which costs another $1000 for each form, and will guarantee visa processing within 15 days. Assuming the most current forms have been filled out correctly, none of the members of the band have criminal records, none have names similar to terrorists, they've sufficiently demonstrated international acclaim, proven they've been together for more than one year, have already booked tour dates, used a valid petitioner, and no wires got crossed, USCIS will at last send an approval notice.
Next comes the hard part: after (and only after) the approval notice has been received, each person who will come to America must schedule a meeting with his or her country's US consulate, appointment waits for which can range anywhere from three to 45 days. Each individual must then pay his or her own way to travel to a certain US consulate at a certain time and date to be interviewed, fingerprinted, get the visa put into their passport, and pay another $131.
"Now think of [artists from] a country like Pakistan," says Ginsburg. "You [may] have to go over a lot of mountains to get there, and we have few posts in many countries. So how much have you spent so far? Two petitions, two union costs, two $1000 fees, each person pays $131, and transportation to the consulate . . . you're risking a whole lot of money up front for a process that may take too long for you to bother in the first place, even if you're paying every dollar you have to get it fast."
Not wholly blind to the problem, Congress is trying to do something. Democratic representative Howard Berman, of California, recently introduced H.R.1312, the "Arts Require Timely Service (ARTS) Act," a bill that passed the House on April 1 and is pending in the Senate. It stipulates that any visa petition from a nonprofit arts group (an orchestra, ballet company, museum, etc.) not processed within 30 days will receive "premium processing" (15 days) without the usual $1000 charge.
While a step in the right direction, the ARTS Act is, in many ways, a Band-Aid on a broken leg. A spokesperson for Berman confirms that it is "definitely more geared to the philharmonics and the large groups sponsored by nonprofits that can't afford to pay the expedited fee," and therefore does nothing for World or popular music. And because the vast majority of nonprofits elect to pay for premium processing anyway, it helps them only with their bottom line. The bill remains impotent in dealing with the biggest problems: consulate appointment times, opacity at USCIS, frequent name confusion (especially common in Muslim countries), and criminal-record waivers.
Rob McInturff, a spokesman for the US State Department, acknowledges the concerns. "Security measures have tightened since 9/11," he says. "Even if it was there before, it's certainly gotten stricter ... that's just a fact of the landscape." He explains that the government does not want to discourage artists from coming, and that the ideal is to "keep our doors open while we keep our borders secure." But while the government might strive to speed up wait times and be as efficient as possible, McInturff can't say that the process, or the several-tiered security, will change in any fundamental way.
"Issuing visas is a large part of that [security]," he says. "Security is just -- it is what it is."
A domino effect
Compounding the issue is a near-total lack of transparency at USCIS. People who have submitted applications are told only whether their claim has been received, is pending, or is approved/denied, and no one at USCIS is able or willing to say anything more than that.
Phone calls to the offices are worthless, as the automated-menu process can literally take half an hour, only to result in the same "pending" message that is on the Web site. Pamela Feo, education manager for the Boston Philharmonic, has been navigating this process without professional help since she started her position this past year. "One of the things I find most annoying," she says, "is that I never know exactly who to ask, and who to find information from. I feel like there's no good resource for finding out which visa is right for people. There's no guidance."
When I ask King at Traffic Control Group if USCIS offers any guidance, he laughs. "If you do a certain amount of petitions a year, you might be able to understand what you're doing," he says. "But if you're sitting in London trying to do this, I think it's probably a waste of your time . . . it's a minefield, it seems to me sometimes."
This opacity leads to problems that bands and artists never even consider, like what happened to Emmanuel Gat. An Israeli choreographer living in France, Gat almost missed his Boston performance this past March because, after successfully completing the paperwork, the US consulate refused to give him his visa, which requires two stamp-less pages on the applicant's passport. He didn't have two free pages, and frantically sent away for a new passport from Israel, received it, got a new appointment, jumped on a plane, and landed at Logan a breathless two hours before his first performance.
Local venues are not amused by this type of customs daredevilry, as they have a serious financial stake in the ability of the scheduled bands to make their shows. Randi Millman has been booking manager for T.T. the Bear's Place in Cambridge for more than 10 years, and says that, in the past year or two, visa troubles have plagued bands more and more, so much so that she now gets nervous when international acts book her club. "I don't want to not book stuff from England, Scotland, Sweden, but I've been hesitating," she says. "I really stress that they need their immigration in place."
When a band cancels a show because of last-minute visa issues, "we're essentially screwed," says Millman. All the money she has spent on promotion, advertisements in newspaper and radio, might as well have been set on fire. "And 10 times out of 10," she says, "you know that night is going to be a train wreck, so you've lost money that way . . . I have to pull something out of my ass at the last minute, and there's never enough time to promote it, and it's never good."
Steve Ferguson, agent for the View, has been forced to cancel two of their tours at the last minute, a call which was not easy to make. "If effects dozens of people," he says. "It's kind of like a domino effect. Everybody suffers."
Avoiding America
"Nine times out of 10," Ginsburg says, "[problems with visas] are probably attributive to some level of incompetence." He says this not as judgment, but as fact: Gat is, I imagine, as knowledgeable about the intricacies of US immigration law as Ginsburg is about contemporary Israeli choreography. If Gat had worked closely with an immigration lawyer or a company like Traffic Control Group, he might have known that he needed two free pages in the back of his passport, but he didn't, and it's these types of un-dotted i's and uncrossed t's that delay visa applications far beyond the point of relevance.
This is why many artists choose to hire specialists, piling additional costs onto an already expensive process. The P1 visa, for example, is for a group that's been together for more than one year. If they've been together for less time, Ginsburg says he might try to work the system by getting the guitarist or frontman in on an O1 visa -- for an individual with extraordinary ability -- and have the rest of the band under an O1S visa, as the broadly defined "support staff." I point out that immigration law seems to require some artistry on his part. "Oh yes," he replies, "I've often said it's less of a science than an art."
In many ways, the long list of bands with canceled or postponed tours acts as a scarecrow for the USCIS, warning would-be applicants to fill out forms properly and in a timely manner. But on a grander scope, the ever-lengthening list of musicians with visa troubles are not the effects but the causes of a larger, far more detrimental issue, which is that an increasing number of foreign artists are starting to see the American music scene as something to be avoided.
For a smaller club-level band, touring the United States is not a profit-making enterprise. Bands face a series of challenges, not the least of which are visa issues: CD sales are down nationally, which has prevented labels from paying tour support at any meaningful degree; the US is an enormous country with long drives between venues (New Model Army drove 10,500 miles in 34 days on their most recent tour, this past April), and gas now averages more than $4 per gallon; hotel prices have increased substantially in the past five years while payment for shows has decreased; this February, the IRS started clamping down on taxing touring bands, up to 30 percent of their profit; and the falling dollar makes payment for shows even less gainful for foreign acts, while the roadies and techies often insist on payment in their native currency.
Take all of this, and then force foreign artists to pay more than $3000 up front for the privilege of applying for a visa (regardless of whether it's accepted), and many are crossing the States off their tour-books.
"The bureaucracy involved in international entertainment personnel coming to America," says New Model Army manager Tee, "is creating such a problem now that a lot of people are just not coming. It's not worth the hassle."
Dani Vachon, manager for You Say Party! We Say Die!, says, "People are on guard and kind of not really going [to the States], not going at all really, instead of trying to go and file the thousands of dollars of paperwork they have to do." YSP!WSD! have recently toured China instead, which Vachon thinks is the way the Canadian scene is going to branch out if the US process continues to be so nightmarishly difficult and expensive.
"Anywhere except for the USA," she says, "because it costs £135 [about $262 US] for the entire band to get a work visa for England, and it doesn't cost anything to go to Europe. It's like, why would you even bother? Obviously, you would bother because it's a decent-size market, but as payment for shows is getting lower, and MTV is refusing to pay royalties on licensing, and you're doing everything for the experience and no money, it's going to be less and less realistic for people to actually do things in the States."
Even if YSP!WSD!'s appeal is approved and the bassist is allowed into the country, Vachon says they'll still need a grant from the Canadian government to be able to make a US tour financially feasible.
"When you put all the numbers together," says Steve Ferguson, who represents a number of international acts, "a lot of people say, 'Jesus, we just can't afford this anymore.' " And unlike popular assumption, they can afford not to. "You can easily be a very successful band in Europe," he says, "and play everywhere in the world, and make a lot of money and never come to the States."
New Model Army intends to keep playing shows in the US, but Tee reiterates the growing aversion on the other side of the Atlantic. "The big problem with touring America is getting to America. It's a terrible hassle. Unless you know you're going to make a shitload of money the first time you go, lots of bands don't bother. Or they go once."
If current trends continue, if foreign artists -- by choice or governmental obstacle -- cannot or will not come to the United States, it is the problem not of a few scattered artists and venues but the entire American music scene. Those who think it helps the careers of American garage bands are missing the point. It does nothing but lower the bar.
Xenophobes rejoice. American music fans suffer. And you, my young British friend, look elsewhere.
Jason O'Bryan doesn't worry about cool foreign bands getting visas, as he only likes Top-40 pop music. He can be reached at jobryan@phx.com.