B-1 Business Visitors, B-2 Tourists and Visa Waiver Program

B-1 Business Visitors and B-2 Tourists
However tempting it may be to permit an alien to render services in the U.S. in B-1 or B-2 status, it is a violation of status to do so.  All members of the entertainment profession seeking to enter the U.S. to render services must have the appropriate visa classification.  Given the risks under current immigration law, particularly from the alien’s perspective, it is unwise to succumb to the temptation to look the other way while the alien enters on a B visa pretending he/she is here simply for meetings or to see the sights. 

The exceptions to this rule are narrow indeed.  Performers may still be classified as B-1 business visitors if coming to the U.S. to participate only in a cultural program sponsored by the sending country, before a nonpaying audience, all expenses paid by the sending government.  Performers may similarly be classified B-1 if entering to participate in a competition for which there is no remuneration other than a prize (monetary or otherwise) and expenses.  Finally, musicians may enter the U.S. in B-1 status to use recording facilities here, for recording purposes only, provided the recording will be distributed and sold only outside the U.S., and no public performances will be given.

Violations of B, or any other, nonimmigrant status, if detected, can lead to deportation proceedings and inadmissibility to the U.S. for a protracted period of time. 

It is possible to change someone present in B-1 or B-2 status to O or P status.  However, doing so immediately upon arrival may raise some difficult issues about the alien’s intent — and resulting representations — when entering initially.  Be careful:  Do not play with Bs!

Visa Waiver Program
Nationals from the following countries may enter the U.S. without a visa for up to 90 days: Andorra, Austria, Australia, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, and The United Kingdom (citizens with the unrestricted right of permanent abode in England, Scotland, Wales, Northern Ireland, the Channel Islands, and the Isle of Man). The general requirements for participation include no prior overstays in the U.S., and a prepaid round-trip ticket to a non-contiguous country within 90 days of arrival. Aliens entering under the Visa Waiver Program (VWP) are subject to the same rules as those admitted in B-1 or B-2 status - meaning they cannot work!

Nationals who wish to travel to the U.S. on the VWP program must first register with the Electronic System for Travel Authorization (ESTA).  ESTA is a brief questionnaire that prescreens applicants for inadmissibility issues.  ESTA registration costs $14 and must be renewed every two years or on the expiration date of the passport used to register, whichever comes first.  Successful ESTA registration does not guarantee admission and should be done at least 72 hours prior to the planned departure date.  More information regarding ESTA can be found online.

There are disadvantages to using the VWP program. Aliens cannot extend their stay in the U.S. if they entered on the VWP, nor can they change to another status in the U.S. Accordingly, they must depart the U.S. and re-enter in another work-related nonimmigrant status before working. Moreover, if there are any questions on entry, they MUST return to their originating country on the next flight out, with no ability to resolve those issues at the USCIS district office with jurisdiction or an immigration judge.