Was a SXSW Travel Visa Crackdown Inevitable Under President Trump?
At least 12 artists hoping to perform at the 2017 edition of the South by Southwest music conference in Austin have been denied entry to the United States, prompting confusion over whether musicians and performers, in general, will have trouble entering the country on a tourist visa or a visa waiver, as many had done in the past.
As President Trump and the White House tighten existing immigration laws, many wonder if border agents are interpreting the president's recent executive orders as a call for greater scrutiny of visa holders.
Belgian rapper Coely is the latest to face visa problems after being blocked from boarding her Austin-bound plane at the Copenhagen airport Tuesday. She took to her Facebook page to announce she would not be releasing her new album at SXSW, writing, "Sadly enough it was all for nothing and I won't be making it to the States." Coely was also scheduled to perform at a number of promotional showcases -- including the Oy Vey event organized by rapper Kosha Dillz, who tells Billboard that, in Coely's absence, Libyan artist KayEm and Jewish accordion player Josh Kantor will join him onstage. "I am happy to keep the art of music alive sans the politics in pure Oy Vey fashion," says Dillz. "And I can't wait to go see Coely live, so I'll have to fly to Europe and catch a show there."
Chilean band Trementina, Spanish rapper Yung Beef and Danish EDM artist Eloq were also denied entry into the country after attempting to enter the U.S. through ESTA as part of the Visa Waiver Program (VWP). U.S. Customs and Border Protection officers informed the artists that the waiver program does not legally allow artists to perform at showcase events like SXSW and other non-paid gigs.
"There has been a bloom in ESTA revocations starting a few months ago. We assume that is not directly related to SXSW, because, if that were the case, we would have seen a lot more revocations, and, as it stands, only a handful have been revoked and the vast majority have not," SXSW immigration counsel Jonathan Ginsburg tells Billboard. "The fact that there are more revocations is an indication that something is going on," but Ginsburg said he doesn't have enough data yet to draw any conclusions.
The visa and waiver problems didn't come as a surprise to attorney Brian Goldstein, who warned about heightened scrutiny at the border in a widely read blog post earlier this month. Goldstein's firm GG Art Law specializes in immigration issues for the entertainment industry and has seen a spike in visa issues for touring musicians.
"The CBP are enforcing laws that have always been on the books," Goldstein tells Billboard. Many of the classical artists Goldstein represents have seen an increase in entry denials over B-1 visa issues, and Goldstein has been critical of SXSW officials for not notifying artists about the crackdown.
"I'm trying to tell these artists what the festival won't tell them," he said. If artists have problems entering the country, "The worst thing that happens to the festival is that they don't have someone onstage, but for the artist, they face deportation and a possible ban on future travel into the country. The artists are not getting the message that they are being set up for a potential disaster."
Korean rapper Don Malik attempted to enter the country Wednesday to play SXSW, traveling from Incheon Airport in South Korea with "staff members of his agency StoneShip and fellow artists," when he and his team were detained during a stopover in San Francisco, "denied entry and sent back to Incheon," according to a translated statement from Jerry K., the CEO of Malik's label Daze Alive. Malik claimed that immigration officials mocked him and called him racial slurs, with "one of the fellow artists" apparently "handcuffed for no reason."
Members of Italian group Soviet Soviet and Canadian-Egyptian post-hardcore band Massive Scar Era, as well as London-based drummer Yussef Kamaal, have also been blocked or arrested for trying to enter the country on a B-1 visa.
Earlier this week, U.S. Customs and Border Protection officials issued a statement to Billboard explaining that, "If an individual is a member of an internationally recognized entertainment group, they must apply for and be granted a P-1 visa." The CBP didn't direct the comment toward SXSW, but the visa problems have put conference officials on the defensive, with SXSW attorney Ginsburg issuing a statement arguing that the State Department "has long recognized that entertainment groups may enter the U.S. to 'showcase,' but not to perform under contract with U.S. venues or other employers."
"SXSW is working in concert with other U.S. organizations in an effort to ensure that both the State Department and CBP continue to treat showcasing as a valid activity in B or Visa Waiver status," the statement continues. "In the meantime, SXSW remains confident that the vast majority of consular officers and CBP officials understand and respect the need for, and the principle of, showcasing at promotional events such as the official SXSW event."
SXSW officials speaking on background tell Billboard the entry denials are likely the result of individual CBP officers acting independently to block artists from entering the country but don’t necessarily reflect a policy change by the U.S. State Department, which issues visas. Some officers could be interpreting the Trump administration’s own hard-line stance on immigration, including a new travel ban that was set to go into effect Thursday (March 16) before a federal judge issued a nationwide restraining order against enforcement of key parts of the order.
For years, SXSW has advised artists that a B-1 visitor visa generally allows -- but doesn’t guarantee -- artists entry into the country for the conference. But Goldstein tells Billboard that a crackdown wasn't surprising and that current B-1, B-2 and visa waiver guidelines prohibit an artist from performing in front of an audience.
"It doesn’t matter if they’re getting paid or not," said Goldstein. "The U.S. defines work as any performance in front of an audience, even if it’s for free and no tickets were sold."
There is a showcase exemption, he said, but it was created for smaller international competitions and business meetings. Over time, the exemption has been interpreted to include auditions, both private and at industry events like the Association of Performing Arts Professionals’ annual conference in New York, which is closed to the public. Because South by Southwest is much more accessible to fans, an increasing number of CBP staff believe artists need a performance visa to play at the event.
That shift in policy could mean significant costs for artists. A B-1 visa runs $165 per person while a performance visa costs $325 per person and could take months to process. An expedited processing fee of $1,225 can speed up the application with a response time in less than two weeks, but many artists simply can’t afford it.
"So in the past, many artists come in and tell the border guard they’re doing an audition, and they get in," Goldstein said. "A lot of these border guards see a few musicians and feel sorry for them and let them in without knowing a ton of details about what the band is up to. But now something has tipped the balance so that benefit is no longer there. The moment they utter the words 'I am a musician,' they're getting pushed back out."
Plenty of musicians are still being allowed to enter the country, but the number being denied at the border is growing, explained immigration attorney Daniel Hanlon, founder of Pasadena-based Hanlon Law Group in a February piece in Billboard. They’ll continue to rise, he predicted, following Trump’s proposed travel ban.
"[Border agents] are human beings, giving visas, stopping people at the airport," Hanlon said. "They have a lot of discretion. It can affect anyone when the president wakes up in the morning and says, 'Oh I don't like these people,’ which is exactly what he did."