November 28, 2022


World Travel Service

O’er the Border: pipers, immigration and suggestions for journey to the U.S.

O’er the Border: pipers, immigration and suggestions for journey to the U.S.


Just a few months in the past, I discovered myself sitting with a handful of different legal professionals in a windowless convention room deep inside the bowels of New York’s JFK airport. We had been listening to a sequence of displays given by a number of stern trying Customs and Border Safety (“CBP”) officers. The aim of the assembly was to evaluation current developments and to strengthen ties between CBP and immigration practitioners in New York and past. Information had been shared, feedback had been made, and arguments had been (largely) averted. Two issues occurred to me throughout that session. The primary was that U.S. immigration regulation, already notoriously labyrinthine and often contradictory even for attorneys, have to be significantly confounding for worldwide guests being fed via the grinder of customs, a lot of them nonetheless groggy from an hours lengthy flight. The second was: what number of pipers must cope with this mess?

O’er the Border: pipers, immigration and suggestions for journey to the U.S.
•JR Strauss is a long-time piper and an immigration lawyer primarily based in Brooklyn, New York.

The aim of this text is to offer pipers, drummers, and different conventional musicians from exterior the U.S. an summary of our immigration system, what to anticipate in the event that they plan on touring right here, and what to be careful for. As competitions, workshops, and efficiency venues start to reopen, musicians coming to the U.S. must be cautious to abide by the related regulation, as what could appear to be a easy error or innocent omission can have main penalties down the highway. (Word: Whereas I like giving unsolicited recommendation as a lot as the subsequent piper, I can solely touch upon immigration regulation within the U.S. For information on the UK, EU/Schengen space, or anyplace else on this planet, contact an lawyer/solicitor.)

Earlier than we go a lot additional, some primary terminology will likely be useful. First, a “visa” is an official doc that enables entry for a selected objective, equivalent to work or examine. It’s usually within the type of a stamp or “foil” that’s positioned in a passport and appears like an ID. The visas mentioned on this article are non-immigrant visas, and canopy brief time period journeys to the U.S. These are very totally different from immigrant visas, which authorize long run or everlasting residency and are step one on the trail to citizenship. The company that oversees the immigration and nationality system within the U.S. is United States Citizenship and Immigration Providers, or “USCIS.” Customs and Border Safety (“CBP”) and Immigration and Customs Enforcements (“ICE”) are regulation enforcement companies which are, as their names suggest, liable for guarding the border and imposing customs and immigration regulation.

With the lingo out of the best way, let’s give attention to just a few of the most typical non-immigrant visas. First, there are the customer visas, that are categorized as B1 and B2 and are issued by a U.S. consulate. The B2 is for tourism, whereas the B1 permits for restricted business-related actions, equivalent to attending conferences or negotiating contracts. Neither enable for employment or work exterior of some very particular contexts. For some individuals, a B visa stamp might not be needed. For instance, if you’re from one of many 40 nations which are a part of the Visa Waiver Program, such because the UK, Eire, most of continental Europe, Australia, and Japan, you need to use the Digital System for Journey Authorization – “ESTA” – to journey. It’s very necessary to notice, nevertheless, that the foundations that govern what can and can’t be executed whereas on a B1/B2 visa additionally apply to ESTA, so I’ll discuss with this household of vacationer/traveler visas as “B/ESTA” for ease of classification (and since I like the way it sounds).

After the customer visas, there are the employment primarily based visas. The commonest are the H (expert employee), E (investor), L (intracompany supervisor or specialist) and the O (extraordinary skill) and P (sure athletes/performers). Of the 5, I’ll solely cowl the O and P, as these apply to pipers and different musicians. These visas additionally require a visit to a U.S. consulate, which is able to hopefully approve and concern the visa stamp itself. (Canadians, who’re visa exempt, can often skip this step – it’s a small profit for placing up with their southern neighbors.) Because of the processing backlogs that plague most consular posts around the globe within the wake of COVID, this step can usually add months to the method. Given these delays, anybody contemplating an employment primarily based visa ought to begin planning sooner somewhat than later. I’ve included on the backside of this text for these in search of extra information.

A query that often comes up with the musicians I work with is that if or after they want a selected employment visa somewhat than the B/ESTA. For almost all {of professional} musicians, it’s most secure to start out from the idea that an O or P visa will likely be required. As talked about above, there are some restricted exceptions beneath the foundations which will apply to pipers and different folks musicians. For instance, professionals coming into solely to compete in musical competitions can use the B/ESTA, as can people collaborating in cultural applications sponsored by the traveler’s house authorities. There are additionally just a few very restricted showcases the place pipers can carry out for potential employers versus an viewers that’s there to be entertained (equivalent to annual conferences and occasions organized by People Alliance Worldwide or The Affiliation of Performing Arts Professionals). Musicians can also obtain an honorarium cost for serving as visitor academics or performers for certified educational establishments for a time frame to not exceed 9 days for anyone entity, with not more than 5 such engagements in a six-month interval. It’s necessary to understand that the exceptions are very narrowly interpreted. The evaluation as as to if or not an exercise is employment and would require a visa is much less about cost and extra in regards to the chance that it’s going to take work away from American musicians. Attempting to get across the guidelines by calling a efficiency “promotional” or voluntary won’t take away the necessity for an applicable employment visa.

As a result of the foundations usually are not effectively outlined or simply exhausting to grasp (if they are often discovered within the first place), conventional musicians could violate them with out even realizing it. Many gamers within the trad and folks scenes are typically soloists or members of small teams and don’t often have the authorized and logistical help of a significant label or massive tour administration to advise them of the visa necessities. One other concern is that a few of the highest pipers have a day job and should not contemplate themselves “skilled” past the bounds of piping competitions. For these rare flyers, an employment visa is the very last thing they’re occupied with. Sadly, UCIS or CBP could have a really totally different thought. In the case of immigration, it doesn’t matter if somebody is coming into to headline a 50-city tour, file an album, or play a fast gig at the back of a pub – the fitting visa is required. In days passed by, a fiddler or a piper could have unadvisedly entered as a vacationer, performed just a few reveals, and slipped out with out immigration turning into any the wiser. Because of social media, digital publishing, and authorities information mining, these days are gone; a probably problematic efficiency or engagement can dwell on-line for years and may come up if an official decides to perform a little googling. Violating the foundations can result in lack of ESTA, visa cancellation, inadmissibility, and probably worse relying on the character of the alleged misrepresentation.

Fortuitously, it’s not all doom and gloom. As talked about above, there are two visa classes that may enable pipers and trad musicians to work in U.S.– the O and the P. The O-1 is reserved for people with “extraordinary skill,” whereas the P is for ensembles and sure particular person performers. Not like ESTA or the B visa, these visas have to be first authorised via a petition submitted to USCIS. Upon approval, beneficiaries can then transfer on to the consulate to request their visa stamp (except they occur to be a type of fortunate Canadians). Of the 2, the O-1 tends to be essentially the most difficult, though it permits for an extended approval interval of 36 months in comparison with the P’s 12 and is probably extra versatile. Candidates (known as “beneficiaries”) have to be represented by a “petitioner,” or a U.S. primarily based entity that represents them earlier than the federal government. To be authorised for an O, a beneficiary should submit proof of a significant nationwide or worldwide award or documentation that satisfies at the very least 3 of 6 regulatory standards, equivalent to proof of starring participation in distinguished productions or occasions or proof of nationwide or worldwide recognition as established by articles by or in regards to the beneficiary in main media or commerce publications. A letter from a labor union or peer group is often required, as is proof of employment within the U.S. The P visa, however, is much less onerous, though shares the necessity for a petitioner, peer letter, and confirmed employment. Totally different subcategories of the P even have their very own necessities, equivalent to coming to the U.S. to carry out as a member of a bunch that has a sustained fame for being “acknowledged internationally as excellent” (the P1B) or people collaborating in a program that’s “culturally distinctive” like a piping faculty or associated program (the P3). As well as, each the O & P visas have subcategories for dependent members of the family in addition to “important help” workers like tour managers or technical crew.

Musicians who’re considering taking up work within the U.S. shouldn’t be intimidated by phrases like “extraordinary skill” or “culturally distinctive.” For instance, established pipers, significantly these with a historical past of wins at main contests or well-reviewed albums beneath their kilt belts, could qualify for an O-1 or a P-3, whereas a longtime trad group may wish to look right into a P-1B. On the similar time, musicians who don’t meet the usual shouldn’t take that as an invite to strive their luck and work with out authorization. When issues go dangerous with the immigration course of, they go very dangerous, in a short time.

Naturally, one query that comes up is “how a lot will this price?” At time of writing, the usual USCIS submitting price for an O or P petition is $460, plus $2500 if an expedited response is requested. Os and Ps additionally want session letters from a union with jurisdiction (often the American Federation of Musicians), which provides at the very least $250. There are additionally visa processing charges assessed by the consulates, which vary from $160 for B visas to $190 for different employment primarily based visas just like the O and P. Whereas ESTA circumvents the necessity to deal immediately with a consulate, even it carries a $21 processing price. You will need to keep in mind that these numbers are solely what the federal government costs, and authorized charges for getting ready a petition, which will be vital, will add to the prices. Potential employees from overseas or their potential employers might want to weigh the price of a visa and the underlying course of towards the worth of the work to be accomplished. In some instances, a single efficiency could not justify the expense. Nevertheless, the price of attempting to untangle the authorized knot that may end result if a traveler is discovered to have violated the immigration laws could also be considerably larger, so care must be taken when planning to come back to the U.S. to work or carry out. Talking with a lawyer or arts group with expertise in immigration issues is the primary place to start out, as there could also be methods to maximise the utility of a selected visa, to not point out the potential to find out about professional bono or grant choices for certified musicians.

The world is lastly re-opening, and I believe I can communicate for different pipers and conventional music lovers within the U.S. once I say that I’m relieved that world acts are lastly coming again to our levels. And because the degree of enjoying continues to develop within the U.S, there’s a renewed want for knowledgeable musicians from overseas who wish to share their expertise and construct new connections. Whereas the immigration system will be tough, there are methods to keep away from hassle and, for a lot of pipers and folks musicians, choices for authorized employment and residence.

Useful Hyperlinks

Artists from Overseas ( An excellent overview of the immigration panorama with a selected give attention to the humanities.

Tamizdat ( A nonprofit that works with artists on immigration points and may, in some instances, assist discover professional bono or low-cost visa choices.

Volunteer Attorneys for the Arts New York ( A authorized support group that may join volunteer legal professionals to potential purchasers in a spread of areas.

Concerning the creator: JR Strauss is a long-time piper and an immigration lawyer primarily based in Brooklyn, New York.