This is the third and final feature in Resident Advisor's three-part series about the cultural and economic repercussions of restrictive US artist visa policies, in partnership with New York club BASEMENT and Wire Festival. The project also includes a newly launched website to guide applicants through the O-1 visa journey.

An 'attractive nuisance' is something that homeowners think will improve the value of their property, but also carries a degree of peril—for example, installing a swimming pool, which increases the risk of drowning accidents. For overseas musicians, playing in the US is an attractive nuisance, as Rev. Moose, co-founder of the National Independent Venue Association (NIVA) and longtime advocate for US live music, says.

The world's largest music market is an attractive tour destination for DJs and performers from abroad yet it comes with significant risks—particularly stress and financial burdens from the artist visa application. Filing for a three-year O-1 visa or shorter-term P-1, required for foreign nationals to play stateside, is overly restrictive, demanding and cost prohibitive, largely due to limited capacity and resources on the government's side (problems that could be fixed through other solutions rather than taxing creatives).

"An inherent issue with US politics is that they think of the arts industry as an indulgence, rather than as an economic opportunity," explains Moose, a managing partner at music marketing firm Marauder. "There is massive economic value to artists being able to tour the world but that's not factored into the government's stance about visas."

Immigration specialists and music industry professionals have long pushed for US visa reforms, urging for speedier timelines and loosening documentation requirements, among other actions. Speaking to Resident Advisor, they outlined clear steps to make the application process more artist-friendly. Failure to do so, they say, hurts the superpower nation's position in the global creative economy.

Reduce Fees

Cost is a major factor in discouraging up-and-coming acts from applying—especially after O-1 and P-1 prices rose by more than 120 percent this year. An additional fee, ranging from $300 to $600, was simultaneously added to fund the government's Asylum Programme, which is entirely unrelated to artist visas. The fee hike is meant to boost the coffers of US Citizenship and Immigration Services (USCIS), the government agency in charge of applications. USCIS isn't taxpayer-funded and depends on filing fees for 96 percent of its operating budget.

"This presumably follows the 'logic' that immigration benefits serve the interests of foreign citizens, not the interests of US citizens, so US citizens shouldn't have to pay for them," says Matt Covey, a partner at Covey Law (which specialises in arts immigration) and executive director of Tamizdat (a non-profit group that champions cultural exchanges). "This, obviously, is ridiculous. The solution is for Congress to fund USCIS so it can benefit US interests."

It's unfair for the arts industry to pay the price, especially when many independent venues "are keeping prices for tickets constant in order to be an affordable place for the public," adds Stephen Parker, a music policy whiz and executive director of NIVA who has spent much of his career liaising between governors and the federal government on economic matters.

Reduce Need for Third Parties

Lawyers constitute a hefty chunk of the overall financial investment because the complexities of the process usually require legal help. That's why the League of American Orchestras, a leading voice of visa reform, established the Artists From Abroad website to help individuals understand whether an attorney is always needed.

"Most artists don't fill out the application because they go to an attorney or a third-party service like mine who handles that," says Connor Nackley, a former booking agent and founder of Virtuoso Visa, an immigration services consultant for overseas artists. "It would be helpful if the application was easier to understand so people could fill it out themselves."

"Unfortunately, it's one of the most time-consuming case types for immigration attorneys to complete," notes Douglas Russo, owner and managing member at Tennessee-based Rose Immigration Law Firm, who regularly works with foreign national musicians on immigration. "That drives the costs for artists."

Moreover, artists can't submit the actual O-1 and P-1 application forms themselves. A US employer, agent, sponsoring organisation or representative of a foreign employer must petition on their behalf. In the music world, "employer" or "agent" will likely mean promoter, booking agent or event company.

"I would change the regulations to allow O-1 artists to self-petition," says Russo. "Many artists end up creating their own LLC to use as a petitioner. Others ask a friend to be the petitioner. Although it's nice for the government to have a contact separate from the artist, it often seems silly to have a petitioner who's wholly unrelated to the case."

Clarify Language

The official eligibility criteria contains confusing wording that could easily be reframed. Applicants must possess "extraordinary ability" for the O-1 while the P-1 requires "a degree of skill and recognition substantially above that ordinarily encountered, to the extent that such achievement is renowned, leading or well-known in more than one country." Not only is this an unnecessarily high bar, these are subjective terms that are open to interpretation, leading to inconsistencies in approvals.

"There are borderline cases that likely get approved, and relatively strong cases that likely get denied because they are from different officers," Russo tells me. "That makes it difficult for attorneys and individuals to have confidence in the system."

Ease Burden of Proof

The O-1 and P-1 require an outrageous level of documentation, such as itineraries with dates and locations of performances for the visa's full duration. Short-term work engagements, in particular, must be more accessible, according to Nackley, who urges for "an overhaul" of the P visa so it requires less evidence.

Applicants must also show press coverage in "major" publications, which seems to disregard non-mainstream press like reputable newsletters. "Some USCIS adjudicators still expect critical reviews to come from print journalism despite the sharp decline in arts coverage, both in print and online form," the League of American Orchestras explains. "One solution would be to train adjudicators to be more accepting and flexible about varying forms of proof of experience."

"The US should be easing—not increasing—the visa burden for arts organisations engaging international guest artists so that US audiences can benefit from the diversity of the world’s cultures," echoed a 2023 joint report by Tamizdat, Carnegie Hall, NIVA, the Recording Academy and other groups.

The report's authors also recommend discontinuing the use of Form DS-5535, a "discriminatory" security form used by consular officers that's "predominantly used by non-immigrant visa units at US consulates in Africa and the Middle East, where its use rarely correlates to legitimate security concerns."

Reliable Processing Timelines

A general rule of thumb in business is that an increase in quality should accompany any increase in price. But it remains to be seen if the new visa rates will improve processing times. According to the Immigration and Nationality Act, completed visa petitions should be reviewed "within 30 days" after filing. Yet this time frame is rarely followed–complaints of debilitating delays are widespread. Artists have no assurance of receiving their visa in time for confirmed gigs—that means tour costs go up while waiting to book flights.

Consistent and efficient processing times "would help reign in the mushrooming costs of petitioning because it would help obviate the need for so many artists to use the exorbitant premium processing service," explains Covey. In recent years, consular processing has evolved from almost a non-issue for most artists to the primary cause of tour cancellations, he says, emphasising the need for additional resources and training.

Communication between agency and applicant is also basically "non-existent," says Moose. He wants the government to make a mandate for reasonably timed responses. "They can pick a time frame and if they don't respond in time, they can refund fees," he suggests.

A painless renewal system for existing visa holders is another productivity-boosting measure. "I see no reason why O-1 renewals shouldn't be as simple as submitting new US performance evidence and receiving automatic approval without the need to re-submit old evidence of critical/commercial success, testimonial letters, etc," notes Sam Bloom, director and agent at New York-based In Context Artists, whose roster includes Calibre, Kia and Conducta. "If the artist was deemed to possess 'extraordinary ability' three years ago, why would they not be today?"

Various government agencies affect the visa process: the Department of Homeland Security (DHS), USCIS, the Department of State, US Customs and Border Protection. Each one has different stakes but they don't often talk together, which may explain the opaque system.

Set Up Support Structures

A lack of familiarity with certain genres and the entertainment industry may explain drawn-out processing times, requests for additional information and rejections. Given the volume of cases, it could help if some officers specialised in artist visas to improve efficiency.

"NIVA would love to see a team at DHS that focuses on processing artist applications," says Parker. When DHS first proposed raising application fees in 2022, "we felt that independent artists and venues and promoters didn't have a seat at the table." The US government, he continues, "did our sector a disservice by not talking to us from the beginning and instead, making us react to a proposal that was unrealistic from the start."

"DJs and producers are at a particular disadvantage in proving themselves, I don't think their artistic merit translates to the USCIS as easily as, say, a less famous concert pianist," says Jacob Hopes, talent buyer and chief production manager at Chicago's Podlasie Club.

Face time with local government officials could also be handy for stumped applicants. "In Amsterdam, for example, there are opportunities for residents to book an appointment with somebody from the city who can help you with your issue," explains Mirik Milan, Amsterdam's former night mayor and cofounder of nightlife advocacy agency VibeLab. "Providing accessible points of service is at the top of mind for local and national governments here."

In an effort to demystify the bureaucratic procedure, RA, New York club BASEMENT and Wire Festival have created a website to guide applicants with the O-1. There's also an FAQ section, prepared in April 2024 with the assistance of David Amar, Esq., an immigration attorney and general counsel of the artist support agency Fanfare Projects.

Executing Action

The US has a long history of protectionism in trade and immigration as a means of boosting domestic industries and US workers. Officials believe they're protecting US musicians from unfair foreign competition but the status-quo is eating into the bottom line of US music businesses and hurts the US's cultural diplomacy.

Current visa rules "have become a massive obstruction through a regime of implementation that has, over the last 30 years, come to prioritise the government's concerns with limiting risks to national security and risks of undocumented immigration," says Covey.

The European Union, by contrast, has a significantly more convenient visa system. "In the EU, folks are less worried that people want to come to the country and stay on illegally," says Milan. Plus, creative and cultural industries are considered part of the economy. "This helps explain why the EU visa system is more straightforward and easier to understand than the US."

So far, government officials are willing to engage in candid conversations about visa reforms, advocates reveal to RA. "The DHS, in fact, made reference to our working group’s policy recommendations when issuing a final rule on new fees earlier this year," the League of American Orchestras notes. Suggestions have yet to be put into practice but as experts all agree, this is a long game with big, long-term wins.

RA, New York club BASEMENT and Wire Festival have created a website to guide applicants with the O-1. The goal is to demystify how the visa process impacts both audiences and performers, by making free visa application guidance and resources widely available. If you would like to get involved or offer feedback on anything discussed in this feature, please email us at community@ra.co