Live events sector
Tighter visa restrictions on performers for South by Southwest showcase performances entering the USA first surfaced when Italian band Soviet Soviet posted a lengthy statement on Facebook on Friday after being refused entry en route to their (unpaid) show. The band say that they were handcuffed and detained overnight after being deemed illegal immigrants because border officials said they had incorrect travel documentation. The band had been travelling on the visa waiver programme ESTA, which allows citizens of nearly 40 countries to travel to the US for 90 days on business or leisure without requiring a visa. However, travellers must not earn money in the US during their stay.
Apart from SXSW, the band had a number of other promotional performances scheduled, including a showcase at Seattle radio station KEXP – but not for payment, and the band said “We knew that if we were to receive any compensation we would have had to apply for work visas. This was not the case and the people we spoke to for information told us we would be fine. The point is that the control agents – who did a quick check on the concerts we informed them of – noticed that two of the venues were asking for entry fees and this was enough to convince them that we needed work visas instead of an ESTA”.
Commenting on that situation, and the temporary jailing of the band, The Department of Homeland Security said: “When a traveller is deemed inadmissible, [Customs And Border Protection] makes every effort to return the traveller without delay. CBP does not have an overnight detention facility at the airport. Therefore, it is standard procedure for any traveller who is deemed inadmissible and is awaiting return travel to be taken to a detention centre until return travel is available” adding “According to CBP policy, it is standard procedure to restrain a traveller who is being transported to a detention facility. The use of restraints on detainees during transport is in a manner that is safe, secure, humane, and professional. It is the responsibility of officers to ensure that the need and level of restraints used is consistent with the operational office’s policies and procedures. At no time are restraints used in a punitive manner or in a manner that causes detainees undue pain”.
Interestingly the much crictised invitation from SXSW actually warns of the risks. And writing on classical music website Hello Stage before Soviet Soviet’s ordeal, Brian Taylor Goldstein of GG Arts Law wrote about issue of artists travelling to the US on non-work visas. He noted that, whilst the visa rules haven’t changed, closer scrutiny of documents by border officials in the wake of President Donald Trump’s increased controls on immigration did mean that more artists would be caught out, saying:
“Even artists entering as visitors for the purpose of attending a conference or ‘performing a showcase’ are being pulled aside and, in many cases, being refused entry. Artists entering with B-1/B-2 visas or through the Visa Waiver Program (ESTA) are being pulled aside the moment they say that they are ‘entertainers’, ‘performers’, or ‘artists'” and “Everyone needs to understand and accept that artists cannot perform on visitor visas (B-1/B-2) or through the Visa Waiver Program (ESTA) regardless of whether or not they are being paid and regarding of whether or not tickets are sold. Except in the most narrowly defined circumstances, US immigration law has always defined ‘work’ as it pertains to artists, as any kind of performance. Artists denied entry on the basis of fraud, will have a denied entry on their record, impeding future visas and travel”
Following Soviet Soviet’s unsuccessful attempts to enter America, four other musicians were denied entry, including London-based drummer Yussef Kamaal and three members of Egyptian-Canadian post-hardcore band Massive Scar Era. Massive Scar Era member Cherine Amr told Billboard her band had played SXSW two times previously on a visitor visa and that she explained this to a border official. “He said that he knows that I’ve done everything legally, and that I’m not lying, but he’s still not going to let me in“, she said. “He said that people are using the festival to protest, but I told him we are not going there to protest”, Amr continued. “We have no intentions of doing anything illegal or engaging in any political activity. We’re just going to promote ourselves, meet labels and bookers and network”.
As the prestigious showcase event went on, it transpired that the number of South by Southwest (SXSW) performers turned away at the US border had risen to ten, with a Danish producer and a British jazz combo now among those forced to cancel their showcases. Three members of British jazz four-piece United Vibrations, brothers Yussef, Ahmed and Kareem Dayes, were denied entry “at the 11th hour”, according to label Brownswood Recordings, forcing the cancellation of the band’s set at the British Underground/Jazz
Dave Webster, the UK Musicians’ Union’s (MU) and chair of the Music Industry Visa Task Force, commented: “We have escalated this to the highest level in the UK to try to ascertain what is going on. It is appalling that these artists have been denied the opportunity to showcase at SXSW. The US Embassy in London has provided no explanation. A letter from Nigel Adams MP and Kerry McCarthy MP requesting an urgent meeting with the US officials has been sent.
South By Southwest guidelines encourage artists to apply for a performance visa even when they are not being paid to play, noting that while acts coming to the US from places like the UK and Canada often can enter on a visitor visa when they are only playing showcases at the festival without payment, entry is not guaranteed although that tourist (‘B’) visa should be sufficient for playing unpaid showcases.
In a statement, their lawyer, Jonathan Ginsburg, said: “US immigration law allows foreign nationals to enter the US using a B visa or the visa waiver programme to conduct business, but not to render services. The US Department of State, accordingly, has long recognised that entertainment groups may enter the US to ‘showcase’, but not to perform under contract with US venues or other employers” and “SXSW is working in concert with other US organisations in an effort to ensure that both the State Department and CBP [Customs and Border Protection] continue to treat showcasing as a valid activity in B or visa waiver status. In the meantime, SXSW remains confident that the vast majority of consular officers and CBP officials understand and respect the need for, and the principle of, showcasing at promotional events such as the official SXSW event.”