No money, more problems.

January 17, 2011 11:25 PM

US travel visa filter - Canadian musicians travelling and performing in the United States, but not getting paid. Do we still require a visa?

I will be travelling in the United States with my friend's band for 11 days in March. In total there will be 5 people (3 musicians and 2 drivers/friends), they'll be playing in New York City and Austin, and we're coming from Toronto.

First we need to determine if a work visa is required for any/all of us to cross the border.
-These are non-paying gigs. We may be able to get a letter from the promoter to confirm this. This part is not a lie to try to get around the paper work, small band, small venues, no payment, maybe a few drink tickets.
-We will have a merch table, would this be relevant?
-If we were being paid we'd fall under the P-2 temporary worker visa. Does unpaid performance still count as work?

Having poured over all the government websites Canadians do not need to file for a visa except for specific exceptions that do not apply to us. (1)
According to this page:
In addition to a valid passport, Canadian citizens may require additional documentation to travel to the United States. If a Canadian plans to attend school or work in the United States, they are required to have the specific required documents for the appropriate visa category. For example...temporary workers require an I-797 from their perspective employer. Exchange visitors require a DS-2019 from the sponsoring organization. These forms (the I-20, I-797, DS-2019, etc.) must be presented at the port of entry to the United States.

Assuming the border agent does not believe that we are not being paid for the US gigs then we need either to have the DS-2019 form completed with a sponsoring agency. Everything seems to point to the AFM for sponsorship between Canada and the US. This option has the downside of being very expensive and time consuming. Since we're not making any money, paying for an expensive visa application isn't that attractive.

If all else fails what are the odds we can just say we're visiting friends in NYC? We are actually crashing at a friends place while in NYC. What are the odds we'll be turned away for insufficient documentation if we pull up in a minivan loaded with 3 guitar cases, a drum set, and 5 young men?

TL;DR: Band is not being paid to perform, does this still fall under the temporary worker visa? If not will we still be turned away at the border, appearing just to have lied about not being paid?

Thanks!

posted by breakfast! to law & government (11 answers total)

What are the odds we'll be turned away for insufficient documentation if we pull up in a minivan loaded with 3 guitar cases, a drum set, and 5 young men?

Based on anecdotal experiences from musician friends, I would give you a very high probability of being turned away - my gut says it's a near certainty, though I can't say that for sure. "Playing a show and not getting paid" doesn't really compute for border guards; they will assume you are being paid under the table and you won't be able to prove you're not. If that doesn't sink you the merch definitely will. Don't risk it unless you're prepared to get turned around, basically.
posted by PercussivePaul at 11:53 PM on January 17, 2011

I would rather have a the correct paperwork in hand and a visa rather than get rejected at the border and possibly all of my gear and vehicle confiscated by a border guard having a bad night.

Found this link specific to what you are looking for. Also, check with the consulate (pretty sure there's one in Toronto) to make sure everything is squeaky clean
posted by Mister Fabulous at 11:59 PM on January 17, 2011

I wouldn't consider it work, no income means no tax liability means not work, IMO. But IANABCA and a specious yet powerful counter argument might be "it would be paid work if Americans were able to get the gig, instead of being undercut by aliens", and if it might come down to a judgement call, a toss of the dice, that's no good.

A P-2 would render the issue moot, but find out if you even have time to get a P-2 (it wouldn't surprise me if they take months to obtain. US immigrations is a mess)

If not, it might be prudent, if painful, to just bring one guitar (for parties) and arrange to rent or borrow the rest of the gear in the USA, then enter to visit your NYC friends (have their names, addresses, etc on hand).
posted by -harlequin- at 1:32 AM on January 18, 2011

When I have played non-paying gigs in the USA I have needed a visa. Normally if you walk into the states with lots of instruments they will expect a performer visa in your passport.
posted by skylar at 1:38 AM on January 18, 2011

AFAIK, USCIS/ICE doesn't care whether you're actually getting paid. That's between you and whoever is(n't) paying you. What they care about is whether it's the kind of work that people can be paid for and often are, which yours is.
posted by ROU_Xenophobe at 6:01 AM on January 18, 2011

Every year there are stories at SXSW of bands that didn't get a visa and were denied entry. This link discusses when non-paying gigs do and don't require a visa (if it's SXSW proper, you must have a visa; if it's a show that's free to the public, you might be okay but will need to document the hell out of it). And this link, although it's aimed at British musicians going to SXSW, accurately points out the risks you run if you are caught doing what -harlequin- suggests.
posted by katemonster at 6:07 AM on January 18, 2011

You need a visa. Even if you don't technically need a visa, the guy at the border is going to say you need a visa and turn you away. And if you're playing in March you are almost certainly not going to get a P2 visa in time.

So if you want to play this gig, you're almost certainly going to have to lie. If you get caught, you're not going to play any US shows for a long time.

But, if you do want to lie, these are the two most successful ways of doing it.

1: Book an hour at a recording studio. Get the studio to write you a letter saying you're recording there. Ship your merch to wherever it is your're staying. Don't carry anything with you that says your band name. Make sure if your names are googled, your band doesn't come up, and if your band does come up, make sure no show listings come up. Deny playing any shows.

2: Go down with no gear and no merch.
posted by Jairus at 7:57 AM on January 18, 2011 [1 favorite]

To add to Jairus' suggestions- if you do opt for either of his approaches, make sure you keep any indicators that you might be playing a gig, paid or otherwise, off the internet. No mentions on your own blog, no publicity, no mentions by people you might be staying with. Even if you are playing a house party, do not make reference to it on the internet. USCIS/ICE has finally figured out the Google, and friends of mine were recently held for several hours at Port Huron while customs agents searched their band name, looking for anything they could use to turn them away. Customs agents love to turn away bands, and will do so on the slightest pretense.
posted by TheWhiteSkull at 8:05 AM on January 18, 2011

Yeah. What everyone else said. Here's a general article about what a hassle it is for Canadian bands to play in the US. It's really nuts.

As far as I know - People do what Jairus suggests. Or lots and lots of Canadian bands just don't play the US...
posted by PersonPerson at 8:41 AM on January 18, 2011 [1 favorite]

Border controls definately are on alert about musicians. Traveling together, having instruments are all red lights for them. You can attempt to travel without gear and merch and travel separately, but you will all have to have air tight explanations for your tourism, both going in and out.

Same goes for US musicians traveling into Canada for gigs. Hardest border I have dealt with since the Ukraine, had to do a gig and a recording session with borrowd instruments. Not fun. It is a serious border, believe us.
posted by zaelic at 8:59 AM on January 18, 2011

Thanks everyone for your help.
I had no idea that musicians were such a particular hassle to get across the border.
As it stands we're not taking any chances and doing everything we can to secure the proper visas in time.

Here we come america maybe!
posted by breakfast! at 7:01 PM on January 18, 2011