Don’t Panic: Experienced Arts Immigration Lawyer Weighs in on the Current State of US Visas for Musicians
Matthew Covey of CoveyLaw has decades of experience with the US visa system, as it pertains to artists and bands coming to America to perform. He’s been an active, compelling voice advocating key shifts in visa policy for the arts. He’s also an immigration lawyer, which gives him special insight into the current confusing atmosphere about what musicians need to consider as they prepare to play in the US.
We ran a few of the most common and pressing questions by Matt, and he gave us some helpful tips and information for artists seeking visas.
Is the interview waiver program still in place?
Since the interview requirement was put in place in 2001, people have generally needed interviews to obtain visas. They made a rule for citizens of most countries that an interview was not required if you had had a visa in the last 12 months. That period was later extended to 48 months. The Executive Order [of January 27, 2017] returned to the 12-month cutoff.
Bear in mind, getting the interview waiver and mailing in an application was often much slower than going to a consulate and doing an interview. It varies dramatically from country to country. It’s very slow, so if time isn’t a concern, and if you’re eligible, go for it. The mail-in option can be a nightmare if you’re working on a tight deadline. It hasn’t changed significantly. The EO has had minimal effect on this.
Have you noticed any overall effects or patterns related to artist visas?
We don’t have numbers yet, but for artists coming from non-European nations, especially Muslim-majority countries, we’re seeing greater delays in the visa issuance process. It seems to be a pattern. It’s just taking longer for Somalis and Iranians, for example, and other countries named in the EO, and from the Middle East in general.
On the other hand, there are many situations that are getting lots of media coverage now as if they are new and somehow reflect policy changes, but which we have been seeing for years. For example, Customs and Border Protection has been checking people's phones and computers for years; it’s only recently starting to get a lot of media attention.
There was a lot of concern this March around SXSW, with reports of musicians being detained or sent back to their home countries because they were coming to the US to play without a visa. What do musicians from Europe, say, need to consider if they are weighing whether they need a visa or not?
Though it’s not related to the EO, it does appear that the government is tightening its review of people coming to the US for employment-related activities. We saw a number of situations where artists were coming in on a visa waiver/ESTA, but their ESTA privilege was revoked at the last minute. That appeared to be a pattern, but we haven’t seen it repeated in following months. To confirm this requires more research, which we are conducting now.
For people doing something work-related, but who believe they don’t need an employment-based visa, we’re provisionally recommending people consider applying for a B1 or B2 visa rather than trust ESTA. I’d rather encounter a problem with a B1 denial at the embassy a month before I travel, than an ESTA denial at the airport when I try to catch my flight to the US. Your chances of avoiding a problem entering the US with your guitars and amp are greater if you have successfully get the B1 visa, compared with just showing up with ESTA.
Many artists aren’t sure if their activities would be allowed on a B1 or ESTA, or if they should be seeking an employment-based status like a P or O visa. We’re asking the State Department officials to annotate artists files because we believe this will introduce a degree of clarity and transparency into the process. This way, if an artist is coming to give a bona fide industry showcase, or is giving a free public performance at an embassy, the artist can seek a B1 visa, and, knowing that the purpose of the trip has been annotated into her file, she can arrive to the US with some degree of confidence that she won’t have a problem at passport inspection.
Many artists apply for O or P visas. Have you noticed any additional requirements in terms of documentation lately?
We haven’t seen the behavior of Homeland Security change remarkably in the last year regarding evidence or other requests.
What do artists need to know about processing times for visas?
For artists from European and most English-speaking countries, not much has changed: there’s certainly no reason to cancel your tour. At worst, you may need to plan for the consular process to take extra time. Leave a month for consular processing, even if it takes 3 days. This leaves time for Homeland Security and State to communicate.
For artists from the EO countries, I’d recommend planning to leave at least at least three months for consular processing (after your petition is approved).
For artist from non-European countries that are not listed by the executive order, especially those in Africa, Central and South America, and in Southeast Asia, plan on longer-than-usual delays at the consulate… probably leave a month if you can. Homeland Security has two jobs, to protect US security interests and to protect US labor interests. We don’t want terrorists or to infringe on US workers’ rights. There isn’t a lot of suggestion that Sub-Saharan Africa is a hotbed of terrorism; the concern seems to immigration. We don’t know what policy behind it these delays, but it appears to be getting harder.
In general, if there’s anything that makes your case complex, be prepared for delays. The state is overworked and dealing with a raft of chaotic directives. Most officials are great and want to do the right thing; it’s a difficult place to be working right now.
It sounds like, with a few caveats, things are much as they were before 2017. Does that sound accurate?
Yes. People are panicking, but they don’t need to. The state doesn’t need to censor us if we censor ourselves. If our fear leads us to avoid booking artists from certain countries or cultures, then you don’t need an official ban. To me, though I’m upset about what’s going on, I feel it’s important to keep doing what we’re doing, to rise to the occasion and tamp down panic.