Bands Behaving Badly—U.S. Visa Perils for Performers and Support Personnel

It’s every manager’s nightmare:  months of preparation for that breakthrough U.S. tour, hours of meetings, hundreds of e mails and texts, late-night phone calls and last minute scheduling glitches, everything is organized and your hot new client is poised to burst on the scene and conquer the U.S.  Attorneys have been retained, visa papers completed and submitted, and final interviews scheduled.  Then, hours before the interview at the embassy your client remembers that incident in Vegas two years ago which led to his arrest…..or one of the key backup performers mentions that he might have had a problem with a minor drug charge in the UK a few years back…or your lead singer, in a very public forum displays less-than-sober behaviour that gets the media buzzing about substance abuse.  Disaster looms.  Will visas be issued?  Can the tour be salvaged?   Not the kind of last-minute hassles you want to be dealing with. 

It’s no secret that U.S. visa regulations can be complicated and confusing.  And it’s generally understood that persons who have committed criminal acts or have been arrested face additional hurdles qualifying to be admitted to the U.S.  What is less understood is how easily such adverse information is now available to consular and immigration officials.  Since 9/11, huge amounts of information on arrests, detentions, and convictions in the U.S. and elsewhere has become available to consular officers charged with determining visa eligibility.  If you client has ever been arrested in the U.S. it will be known to the consul.  If he or she has been detained by immigration or denied entry to the U.S., that will be in the system.  What’s more, saturation media coverage can give rise to grounds for visa denial even in the absence of formal arrests, criminal charges, or convictions.  Given that there’s no place to hide any more, how can you maximize the chances that your talented but sometimes volatile  clients can still receive approval to perform in the States?

Let’s start with a quick summary of the applicable U.S. immigration law.  Most entertainers and support personnel who wish to perform in the U.S. qualify for visa issuance in the O or P visa categories--petition-based non-immigrant visa categories designed to facilitate entry to the U.S. of, among others, performers and artists of merit and their support personnel.  An individual can meet all the qualifications for visa issuance in these categories but still fail to qualify for visa issuance because of circumstances that make them inadmissible under the law.   For our purposes, we’ll limit the discussion to the two areas most likely to impact your clients:  health-related and criminal grounds of inadmissibility.

An otherwise qualified O or P visa applicant can be denied a visa if he or she is determined to be a drug abuser or addict, or if his or her behaviour in connection with a physical or mental disorder has posed or may post a threat to property, safety and welfare of others.  Significantly, this has been interpreted to include episodes of Driving Under the Influence(DUI) as well as incidents of a criminal nature  where alcohol or psychoactive substance abuse is a “contributing factor”.  “Drug abuse” is defined very broadly in the law as the non-medical use of a controlled substance as determined by the Department of Health and Human Services.  For an individual to be determined to be a drug abuser or addict, the use need not result in physical or psychological dependence.  In short, a client who admits to drug use or has been the subject of highly visible press reports about drug or alcohol abuse could be determined by a consular officer to be inadmissible under this section of U.S. law.

What about past criminal behaviour?  U.S. law says that persons who have been “convicted of” or admit to the elements of a “crime of moral turpitude (CMTs) ” are inadmissible.  The law helpfully does not further define what a crime of moral turpitude is, which has resulted in a great deal of complex and contradictory case law.  As one court put it, a crime of moral turpitude “refers generally to conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality ….an act which is per se morally reprehensible and intrinsically wrong.”  You can see already that this standard is both flexible and vague.  U.S. regulations also state that CMTs that are “petty offences” (penalty of less than one year and sentence of less than 6 months) are not grounds of exclusion—except for drug-related offences, which are never deemed to be petty. Driving under the Influence of Alcohol is typically a petty offence, except when it’s aggravated (suspended license, culpable mental state).  And here’s the kicker—your client can be deemed to have committed a CMT even in the absence of formal conviction if he or she acknowledges having done the deed. 

Confused?    Ready to cancel the tour?  Steady on.  For most criminal and health-related grounds of inadmissibility, waiver relief is available.  A waiver request asks the U.S. Attorney General to admit an individual to the United States who is otherwise inadmissible.  In 2006, for example, U.S. consular officers around the world found 3,647 individuals inadmissible due to their commission of crimes of moral turpitude; of these, 2,222 were able to overcome the ineligibility. 

Careful planning and full disclosure is essential to minimize the disruptions that can occur when one or more of a group of performers may be inadmissible.  Right from the start of  planning  for U.S. tours, managers should query each member carefully about any of their past actions that may have led to their arrest or conviction, no matter how trivial the offence may seem, and make certain the information is promptly conveyed to legal counsel.   Particular attention should be paid to the circumstances behind drug-related arrests or convictions.  And the inquiry shouldn’t be limited just to transgressions in the UK or the US—increasingly, information on criminal activities around the world is available to U.S. officials.  Grounds of criminal exclusion freely admitted to prior to visa interview give your legal counsel time to prepare for a successful waiver submission on your client’s behalf.   

Widely publicized “bad behaviour” can be particularly difficult to manage.  One has to assume that a public melt-down or bizarre behaviour displayed before the media will be widely known and could lead to questions of drug dependence or alcohol abuse—health-related grounds of inadmissibility.  If your clients have indulged in such notorious activity, his or her medical condition can come under scrutiny at the visa interview, and the consul has the ability to require the applicant to be examined by a physician to determine if he or she is addicted or a substance abuser.  AIDS is also a grounds of inadmissibility; if your client has publicly acknowledged having AIDS, he or she will have to obtain a waiver to be admitted as an O or P  non-immigrant.   You should talk frankly with your clients about these matters, and caution him or her that fame or fortune will not shield them from the law. 

Forewarned is forearmed.  Get all the information you can from your clients as soon as you can, and share it with your legal counsel as soon as you have it so that they can determine whether a waiver is required or would be likely to be approved.  And keep this in mind:  a waiver request can only be filed once a visa has been applied for and denied, and they can take several weeks or longer to process.   If you don’t start the process of arranging for visas for your clients as soon as you finalize your plans, you may have to leave behind a key member of your group who needs a waiver to enter the U.S. 

The good news is that most of your clients who find themselves excludable can, with careful and timely preparation, qualify for waivers and get on the plane with the rest of the group.   If they’re straight with you, that is.