by Kevin Erickson, National Organizing Director
On Friday, March 10, 2017, news broke that a band called Soviet Soviet had been barred from entering the US and forced to fly back home, cancelling a US tour that included Austin’s SXSW festival. In the wake of recent controversy about language in SXSW’s performance agreement, the news created a flurry of outrage and panic, and quite a bit of misunderstanding. Here’s our attempt to answer all your questions:
Headlines are saying “Italian Band Jailed, Deported for Illegal Immigration on the way to SXSW” Isn’t this big news?
A more accurate headline would be “Italian band detained, denied entry for failure to obtain work permit for North American tour.” This certainly sounds like an awful and frustrating experience for the band, and it’s not how American fans want visting performers to be treated. However, it’s also something that happens quite routinely when artists misunderstand the requirements of a tourist visa; it very rarely makes headlines. Unfortunately, it can seriously impede the possibility of future US tours as well.
Shouldn’t we be worried about this in the context of the new administration’s changes to immigration policy?
It’s certainly appropriate to have new concerns about artists and cultural exchange in light of executive orders rooted in bigotry, and in light of the rise we’ve seen in xenophobic hate crimes. But the best way to understand this incident is to step back and look at the big picture.
Okay. So where is FMC coming from on this issue?
First, we’d like it to be easier, faster, and less costly for international artists to tour the US; reciprocal cultural exchange is good for diplomacy, good for business, and good for preserving and advancing precious musical traditions.
Secondly, we want artists–and all visitors to our country–to be treated with respect at every stage of the process.
Thirdly, we need to acknowledge the obvious fact that immigration policy has serious impacts beyond the music community, and that artists are rarely the first priority in these policy decisions. These are not just questions of whether artists are able to tour profitably; they are questions of human rights and human dignity. A bunch of guys in a band may not always be the most appropriate faces to illustrate the gravity of the issue.
So what kind of challenges do international artists face when trying to tour the US?
It might be helpful to divide the problems encountered into three big groups.
Group 1: artists failing to apply for the appropriate visa for what they want to do. This is apparently what happened to Soviet Soviet. As their own statements make clear, someone gave the band bad advice and told them an ESTA (a waiver that grants privileges equivalent to a tourist visa) would suffice, when they actually needed category P work visas. It’s a common, though expensive mistake.
As attorney Brian Goldstein writes, “It doesn’t matter if the artist isn’t being paid. It doesn’t matter if tickets are free. It doesn’t matter if the audience is enthralled, inspired, impoverished, infirmed, intoxicated, or indifferent.” The conditions under which you can perform in the US with only an ESTA waiver are very limited: government sponsored cultural exchanges for nonpaying audiences, certain “showcases” at industry conventions that qualify as “auditions,” (this is the exception by which at least some SXSW showcases are exempted), contests where the only payment is a prize (like international choral competitions), and a few other unusal circumstances.
Soviet Soviet’s US tour plans included a trio of club dates in Seattle, Long Beach, and LA, before arriving in Austin. These plans would have required a work visa, regardless of whether the band was getting paid for their performances. For years, arts advocates and immigration attorneys have emphasized that tourist visas and ESTA waivers do not allow for performances except under a very narrow set of circumstances, but certain promoters, managers, etc persist in sharing misinformation.
Group 2: long-standing issues with USCIS. Some of this is codified in our laws: high fees, challenging eligbility requirements. Other issues reflect bureaucratic and administrative failures: long delays in processing, especially if your application is routed through the USCIS office in Vermont, redundant requests for documentation, and agency employees who aren’t familiar with the basics of international touring. This can impact even artists who do everything right, who apply for the right visas on an appropriate timeline. Congress deserves some of the blame for this set of problems, as the agency is underfunded, and thus understaffed and plagued with high employee turnover which exacerbates the issues.
Arts advocates have been working for decades to address these problems, both through pushing for legislative changes, and through direct engagement with the agency to encourage better practices and better communication.
Group 3: new problems encountered because of the new administration. This category could include issues arising from executive orders, including artists whose travel is directly impacted by the new travel ban, “heightened vetting and screening procedures” applied to everyone that result in less forgiveness and flexibility, and the elimination of the Visa Interview Waiver Program, which allowed some frequent travelers to skip consular interviews. Attorneys Brian Taylor Goldstein and Robyn Guilliams have a solid rundown here.
Arts groups (including FMC) have made no secret of our objection to these new rules. While the new ban may again fall in the courts, the best source for up to date information on this topic continues to be artistsfromabroad.org.
Artists and their allies will be able to be much more effective at collectively responding to these new (“group 3’) developments if we are able to differentiate them from older, longstanding (“group 1” and “group 2”) issues, even as we understand how new problems exacerbate old problems. So as we hear about incidents of other artists facing problems entering the US (and there will likely be more, probably even this week), it will be important to take a deep breath and see how it fits within the existing legal framework.
Does this vindicate SXSW, who had said that they included some of the controversial language in their contract to warn people about the consequences of playing shows other than official showcases?
To the contrary, it underscores that this information belonged in a different document that presented the terms of B1 visas and ESTA waivers cleary and didn’t bundle it with strange threats and complaints of how unofficial events “undermine” official showcases. It’s good that SXSW has agreed to change this language, and their apology was warranted.
It is also worth remembering, though, that SXSW does create some real opportunities for international artists, some of whom would have a very difficult time obtaining O or P visas successfully. SXSW has been an ally to international artists in the past, and despite their missteps, we fully expect that they will continue to be an ally moving forward. Our hope is that this whole episode with SXSW can be a galvanizing event that encourages artists and allies to come together to defend cultural exchange, oppose xenophobia, and work towards saner and more humane immigration policies across the board.
Update: on Monday afternoon, NPR reported that at least three more bands were denied entry on the way to SXSW, and suggesting at least one may have been attempting to travel with the wrong visa classification.