SXSW Band Members Detained and Denied Entry to the U.S. - The Importance of Good Legal Advice

The Entertainment, Arts and Sports Law Blog

Sponsored by the Entertainment, Arts and Sports Law Section of the New York State Bar Association
March 15, 2017


On March 8th, members of a band that sought entry to the U.S. to perform at the South-by-Southwest (SXSW) Festival were stopped, removed for secondary examination, and ultimately detained in a detention center (akin to a jail), before being denied entry to the U.S. and sent back to Italy on the next available flight. The band was Soviet Soviet, an “Italian postpunk trio”, and it posted a lengthy statement on its Facebook page regarding the band members’ ordeals. The circumstances of their detention and denial of access to communicate are not uncommon, and have been the normal course of business at the border, no matter how much we dislike it. However, the biggest issue is regarding the statement that the band members were advised and directed that entry into the U.S. under the visa waiver program (sought by applying through ESTA) would be perfectly acceptable and was lawful. It was not.

The band’s statement reads, in part: “We left Italy headed towards the US with all necessary documents, passports and various declarations in which we clearly explained the purpose of our tour, confirming it is was strictly promotional and that we were in no way going to earn money from it or receive any form of payment. 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. We had not agreed on any payment whatsoever and the scheduled showcase performance at KEXP was most certainly not a paid performance.” (emphasis added)

The band was simply the victim of bad advice, and though it is worth noting that bad advice or misleading information abounds these days from all corners of the Internet, a very simple review of the authorized activities is able to be viewed as follows: (1) first, run a quick search for, “b1b2 visa what can I do” in Google and click the first link that appears; and (5) second, scroll down on the U.S. Department of State’s website regarding the B-1/B-2 visa and click on “Travel Purposes Not Permitted On Visitor Visas:” to reveal the following:

These are some examples of activities that require different categories of visas and cannot be done while on a visitor visa:

 study

 employment

 paid performances, or any professional performance before a paying audience[…]. (emphasis added)

The issue here is whether or not the band would be deemed professional. If it was designated as an amateur group, then under the B-2 component of the B-1/B-2 visa, Soviet Soviet would have been perfectly fine engaging in SXSW: One such example of “activities permitted with a visitor visa” includes “participation by amateurs in musical, sports, or similar events or contests, if not being paid for participating”. (emphasis added)

There are many who seem conflicted by these points, both practitioners and others, but both the U.S. Citizenship and Immigration Services (USCIS) and U.S. Customs and Border Protection (CBP) have been consistent regarding this interpretation, even if CBP officers were not dogmatic about enforcing this aspect of immigration law. However, they are now.

As those CBP officers are now being dogmatic in their enforcement of these provisions of immigration law, we need to be extra vigilant in providing advice to our clients, executives, artists, entertainers, athletes, and the like.

http://www.thewrap.com/italian-band-jailed-deported-on-their-way-to-sxsw/

http://www.nytimes.com/2017/03/12/arts/music/members-of-the-italian-band-soviet-soviet-are-deported.html

https://travel.state.gov/content/visas/en/visit/visitor.html

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