B-1 and B-2 Visitors
Neither the Immigration and Nationality Act (“INA”) nor Title 8 of the Code of Federal Regulations (“Immigration Regulations”) define the work “entertainer”. However, Note 8.1(b) to §14.05 of Volume 9 of the Foreign Affairs Manual (“FAM”), the manual used by the Department of State (“DOS”), defines the term “member of the entertainment profession” as including performing artists such as stage and movie actors, musicians, singers and dancers, and also other personnel such as technicians, electricians, make-up specialists, film crew members coming to the United States to produce films, etc.
As a general rule, a member of the entertainment profession cannot work in the United States under B-1 or B-2 status, regardless of the amount or source of compensation or whether the services will involve public appearance. However, it is possible for an entertainer to enter using B status under limited circumstances.B-1 Visitors for BusinessThe Immigration and Naturalization Service (“INS”) offers several specific exceptions to the general rule. Under §214.2(b) of the INS Operations Instructions (“OI”), the following individuals may be classified as B-1 nonimmigrants if they receive no salary or other remuneration from a United States source (other than an expense allowance or other reimbursement for expenses incidental to the temporary stay):
- an alien entertainer otherwise classifiable as an H-1 nonimmigrant:
- coming to participate in a cultural program sponsored by his or her government;
- who will be performing before a non-paying audience; and
- all expenses, including per diem, will be paid by his or her government; or
- an alien entertainer, even though not of H-1 caliber, who is a resident or national of Canada or Mexico and is coming to the border area of the United States to participate in a long established religious festival or ceremony, or in a long established bi-national civic celebration.
The reference to H-1 in this context is somewhat confusing since entertainers are no longer eligible for H-1 status. Despite the fact that entertainers were removed from the H-1B category after April 1, 1992 (and moved to the O and P categories), the former H-1B standard of “prominence” is still relevant in determining eligibility for visitor status under the OIs.The H-1B provisions previously referred to an alien “of distinguished merit and ability” who is to perform services “of an exceptional nature requiring such merit and ability”. The Immigration and Naturalization Service (“INS”) had previously interpreted this standard as “prominence.”DOS also lists several limited exceptions to the general rule at 9 FAM §14.05:N8.1-1. Participants in Cultural Programs or International CompetitionsA professional entertainer may be classified B-1 if the entertainer:
- is coming to the United States to participate only in a cultural program sponsored by the sending country; will be performing before a nonpaying audience; and all expenses, including per diem, will be paid by the member’s government; or
- is coming to the United States to participate in a competition for which there is no remuneration other than a prize (monetary or otherwise) and expenses.
Canadians are visa-exempt for visitor visas so it is the INS and not DOS which makes the determination of eligibility. As the FAM is published by DOS, it is not binding upon the INS. However, the fact that a proposed activity is specifically permitted in the FAM should carry some weight.
B-2 Visitors for Pleasure
Although professional entertainers cannot enter the United States as B-2 visitors for pleasure, Note 10.6 to 9 FAM §41.31 states that amateur entertainers and athletes may enter to perform in a social or charitable context or to compete in a talent show, contest, or athletic event without compensation except for incidental expenses.A general discussion of the B-1 and B-2 categories appears elsewhere at this web site.
H-2B Temporary Workers
Although actors and actresses are now precluded from the H-1B category, they may still apply for H-2B status. Alien entertainers who are not considered to have “extraordinary” ability or international recognition as “outstanding” are must use the H-2B category, rather than the O and P categories, which are set aside for top-level entertainers.Although the H-2B category does not require a showing of prominence, it is a difficult category to work with since an alien seeking classification as an H-2B worker normally requires an approved labor certification evidencing that:
- unemployed, qualified U.S. workers are not available for this position in the region of the alien’s proposed employment; and
- the employment of the alien will not adversely affect the wages or working conditions of U.S. workers similarly employed.
Special labor certification procedures apply when seeking H-2B status for entertainers. These procedures are addressed in General Administrative Letter No. 5-84 published by the Department of Labor in the Federal Register , Volume 49 No. 123 on June 25, 1984. However, a brief discussion of labor certification for entertainers appears in the general H-2B article, which is available here.
O-1 Aliens of Extraordinary Ability
Actors and Actresses can apply for O-1 status, although the standard for performers in television and film are different than that applicable to other artists. The “extraordinary” standard is defined differently, depending upon the alien’s field of endeavor.For artists and entertainers (other than those in the motion picture or television field), the term “extraordinary ability” means only distinction.
Distinction is a high level of achievement in the arts evidenced by a degree of skill and recognition substantially above that normally encountered to the extent that a person described as prominent is renowned, leading or well-known in the field of arts. Live stage performers would qualify for O-1 status under this standard.For artists and entertainers entering in connection with motion picture or television productions, the separate standard of “extraordinary achievement” applies.
This term means a very high level of accomplishment in the motion picture or television industry evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that the person is recognized as outstanding, leading, or well-known in the motion picture or television industry.There is no specific limitation on the period of stay for O nonimmigrants as the initial period of stay can be for the time necessary to complete the event or activity or group of events or activities for which the nonimmigrant is admitted, up to three years.
“Event” is defined as including an activity such as a scientific project, conference, convention, lecture series, tour, exhibit, business project, academic year, or engagement. Extensions of stay, to complete the event for which he or she was originally admitted, may be authorized in increments of up to one year.The O-1 category is a commonly used category for actors and actresses working in the film and television industry. However, it is less commonly used by live theatre performers from Canada and the U.K., despite the fact that such performers are subject to the lower “artist” standard. This is because Canadian and U.K. nationals will find it easier to apply for P-2 status through Actors Equity. Information concerning the P-2 exchange program appears below.
The O-1 category is discussed in our O-1 article, available elsewhere at this web site.
P-1 Entertainment Groups
P-1 status is available only to entertainers who perform as members of an entertainment group (or are an integral part of the performance). An entertainment group consists of two or more persons who function as a unit. Individual entertainers are not eligible for P-1 status and must seek admission under the O-1 category.
To qualify for P-1, it must be established that the group has been internationally recognized as outstanding in the discipline for a sustained and substantial period of time. It is also possible to obtain a waiver of the international recognition requirement for an entertainment group which has been recognized nationally for a sustained and substantial period of time, where “special circumstances” exist.
A specific example of “special circumstances” is where an entertainment group finds it difficult to demonstrate recognition in more than one country due to such factors as limited access to news media or consequences of geography.P entertainment groups may be admitted for the period of time necessary to complete the performance or event, not to exceed one year. For entertainment groups, extensions may be granted for up to one year at a time to continue or complete the activity for which they were initially admitted.Further information regarding P-1 status appears here.
P-2 Reciprocal Exchange Programs
The P-2 category covers artists and entertainers, including individuals or groups, who seek to be admitted through a reciprocal exchange program between a foreign-based and U.S.-based organization (including a management organization) which are engaged in the temporary exchange of artists and entertainers. The exchange of artists or entertainers must be similar in terms of caliber of artists or entertainers, terms and conditions of employment (such as length of employment), and number of artists or entertainers involved in the exchange.Unfortunately, only a few P-2 programs have been established. Actors Equity runs two P-2 programs with its Canadian and U.K. counterparts. However, Actors Equity has jurisdiction only over performers in live format presentations such as theatre productions.Further information regarding P-2 status appears here.
P-3 Culturally Unique Performers
Aliens who perform as artists or entertainers under culturally unique programs may be admitted under the new P-3 classification. The term “culturally unique” is defined as “a style of artistic expression, methodology, or medium which is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons.” This includes unique art forms that may be less well known to the public because, by their nature, they do not ordinarily receive the widespread acclaim and recognition as mainstream events. To qualify for P-3 status, artists or entertainers must be coming to the United States primarily for cultural events to further the understanding or development of the culturally unique art form.