When you look at the list of concerts coming to your city or look at professional sports rosters and see unique and exotic names from other countries, it may seem normal to you as a spectator. However, for each international artist who plays a show in the U.S., or for all those great international baseball, hockey and basketball players, for example, there is a separate preliminary process which each one of them must take in order to be eligible to perform or play in the U.S. This involves negotiation with U.S. agents, companies, venues and teams, and requires iron-clad, detailed contracts in order to apply for the visas which authorize these foreign stars from working in the U.S.
For all foreign nationals who might be interested in performing in the U.S., they first need to know that this is absolutely not allowed without a specific visa, and in many cases the corresponding visa is the P-1 visa, which applies to performances, tours and seasons (O-1 visas will be addressed in another article). An artist or athlete can only perform without a work visa if they are not paid or reimbursed in any way (not even a meal, a plane ticket or a hotel room) and if the audience does not pay to attend the event, i.e. no revenue is generated. An important caveat is that this does not apply to unrecognized or amateur talent. In a chicken-and-egg type scenario, athletes and performers must be professionals who are internationally recognized in order to qualify for this type of visa.
To qualify for a P-1 visa as an entertainer, the application can be done individually or as a group, and must show the following:
- The entertainers are traveling as part of a group;
- Such a group as a whole has been internationally recognized as outstanding for a period of time;
- Such group consists of at least 75% of the members who have been with the group for at least one year;
- The entertainers are entering the U.S. exclusively to perform with that same group;
- An appropriate labor organization provided written consultation; and
- A contract exists where the entertainers are employed by the employer(s).
Alternatively, a U.S. agent can file the P-1 visa petitions on behalf of both the entertainers and the employers. However, agents are subject to additional conditions and must present:
- A complete itinerary of engagements for the entertainers;
- Specific (a) dates of each engagement, (b) names and addresses of each employer, (c) names and addresses of each establishment, venue or location of the performances;
- Contract terms between the employers and the entertainers; and
- An explanation of the terms and conditions of the employment, along with any required documentation.
Additionally, the agents must show they are in the agency business. More specifically, the agents must show they are authorized to act as the agents for the other employers for the purposes of filing the petition for P-1 visas. This requires a representation agreement between the agent and the entertainer(s). For athletes, the same requirements apply and vary depending on whether they apply individually, based on an employment contract with one team, or if they are visiting as part of a club, like a friendly soccer match versus the U.S. or another country, for example. All the individual players must then apply for visas under this category.
That leads to the question of who is actually petitioning for your P-1 visa – the employer, your agent or some other sponsor (like the company that runs a festival venue, for example), and what should those contracts look like in order to qualify for the visa. Since a separate P-1 visa petition must be filed for each entertainer or athlete,and their supporting staff (think Cirque du Soleil, for example), applicants should consider the contract term length to allow enough time for the P-1 visa petitions to be approved by USCIS and for the U.S. embassies or consulates to process the visa applications.
Since the term of the visa depends on the duration of the contract with one employer, or the series of contracts with multiple employers through an agent, each contract must be legally binding and fully executed, and must comply with all employment laws.
Although the USCIS allows an oral agreement to qualify as a binding contract, for the purposes of the P-1 visa applications, entertainers, athletes, agents, and employers should commit their deal terms to write (to ensure clarity of the parties’ respective obligations). For a contract to be binding, there must be bargained-for promises that are mutually agreed between the parties, and something of value must be exchanged (legally known as “consideration”). The most common arrangement is the payment of money in exchange for services.
Standard practice is for the agreement with an employer to be contingent on the grant of a valid visa (P-1 or otherwise), to avoid the risk of foreign nationals performing illegally. Naturally, all parties want assurances that the talented foreign nationals can travel to and work in the U.S. before anyone is bound to the contract. Foreign entertainers and athletes may negotiate for the employers to cover expenses related to obtaining the P-1 Visa, while organizations may wish to have flexibility with the performers should the visa be delayed due to no fault of any participant. The parties should also consider a contingency plan should the application be rejected. A well-drafted agreement should also clearly specify any liability, or funds that may be owed, in the event the performance becomes impossible, due to a failure to obtain the visa or a force majeure event (which typically includes a natural disaster, labor strike, or other things outside the control of the contracting parties).
In some talent-agent relationships, the contract may include authorizing the agent to speak for the talent and to sign binding documents and receive payments on their behalf. Some U.S. agents might make their representation dependent on the talent receiving a successful visa, and others might even assist in the visa application process, including taking the necessary steps to file extensions of stay (if the engagements go beyond the initial visa period).
Entertainers and athletes applying for U.S. visas, should be aware of whether their performance in the U.S. is subject to any guild guidelines or requires that they obtain membership or permission from a labor organization.
For all parties, a smart rule of thumb is to get all terms of the agreement clearly in writing, and in advance, to avoid disputes or disagreements later.