Photo by Theodore Roszak
The story is always the same. A band from a foreign country is coming to play a US festival, headline a tour, or make the rounds through SXSW. Days before the show, the artist has to cancel. Their visa was delayed, held up at an embassy, or denied outright. Fans are disappointed, venues lose out, and festivals either try to replace the act at the last minute or just cut their loss and eat a time slot. Most importantly, the band loses money — money they would have made from the show and money they’ve already spent to begin the visa process often months earlier.
For the bands that do make it over and get paid to perform, the amount they collect is taxed heavily in the US and sometimes in the band’s country of origin, too. “Foreign artists get taxed 30% at a federal level and then whatever the state you’re playing in charges, so it’s possible to lose almost 40% of your show fee in taxes,” says Alexis Rivera of Echo Park Records. Rivera works with bands like Melody’s Echo Chamber, who had to cancel an appearance at the Levitation festival in Austin earlier this year due to visa issues.
Rob Fitzpatrick, co-founder and booker of Levitation, describes the process of booking international acts as an “uphill battle.”
Japan’s ZZZ at Levitation 2015 // Photo by Jaime Salazar
“In recent years, it’s been more and more difficult for artists to get working visas,” Fitzpatrick says. “The timelines to get working visas have gotten longer, and sometimes they just come too late. Bands have to drop off the lineup and cancel their tour, often at great personal expense.” The festival works to curate a lineup of diverse acts from around the world, but for bands who appear “further down the lineup,” playing the States may not be feasible.
“What we can sustainably offer them on the festival side is nowhere near what is sustainable for them,” Fitzpatrick explains. “I have to find a balance between booking artists we love and want to bring over and being financially responsible and keeping the festival alive.”
Fitzpatrick says the festival works to help artists, writing letters of support to help the approval process and working with other festivals and booking agents to help the band plan a tour they can afford. “Between tax withholding and the sheer costs of flights and touring, oftentimes we just can’t find a way to make it work.”
The steps artists have to take to obtain a visa in the first place are lengthy and complicated. Andy Inglis of 5000, a British company that manages acts like East India Youth (and formerly tour managed Savages) and gives lectures about the music industry, calls it a “pain in the ass.” Last November, East India Youth had to cancel an appearance at Iceland Airwaves because their visas and passports were held up at the US embassy. Inglis issued an open letter accepting responsibility as a manager, but also indicated that the application was opened two months prior and delayed, preventing the band from having passports ready to make it to the festival.
According to the US Citizen and Immigration Services’ website, artists can apply for an O-1B nonimmigrant visa for “individuals who possesses an extraordinary ability in the arts … and [have] been recognized nationally or internationally for those achievements.” To do that, they must have received or been nominated for a significant national award in the field, or prove they meet three out of six criteria, including national or international recognition as shown by critical reviews in major newspapers or magazines, evidence of substantial remuneration as shown by contracts, and testimonials from recognized experts in the field in which they are engaged.
David King and Carly Wiskoff of the immigration firm Wiskoff Law help bands and managers arrange US visas. They explain that the process has become harder for artists, who, in addition to proving merit, have to show that they have work. “If you’re a band, you can apply for a visa for a year,” King explains. “If you’re a solo artist, it’s three years. It’s become more difficult to persuade immigration that those people have work the entire time. It used to be they could accept spec or tentative work, but they’ve stopped that now and want much more proof that you’ve actually got work.”
For regular processing, obtaining a visa can take four to five months, unless bands pay $1,500 to fast-track the process. King said that if he was a manager and wanted to save money, he would give himself six months and that even with a more successful band he would still want eight weeks. Wiskoff explains that the variability of the backlog can just depend on the person at the embassy it lands on. “They don’t take into account the date on the petition; they just allocate those petitions to the people who work with them,” Wiskoff says.
King explains that it’s not an exact science, as some bands have an easier time qualifying and some may not qualify at all. “Immigration only gives visas to bands that have a reasonable level of success,” he says. “It’s not an automatic right that you get a visa to come here.”
The US Embassy in London
Both Wiskoff and King indicate that it’s almost impossible for smaller bands who make $2,000 to $3,000 a night to turn a profit between visas, taxes, and other costs. “Most of these tours are in the hope of bands building their name here or getting record deals,” King says. He explains that bands have to decide if the monetary loss is worth the chance to tour the US and possibly increase record sales, or whether it makes more sense to come to the conclusion that “America’s not a good market.”
“I haven’t seen any sign of that,” King says. “Bands want to come. They just wish the process was a little bit easier and cheaper.”
Withholding tax makes up a large aspect of those prohibitive costs. Off the top, bands lose 30% in withholding tax, which can cause a huge strain on them financially, especially if they have to pay taxes in their home country as well. As members of the Swedish band Makthaverskan put it via email, “It’s really expensive to fly with equipment, hire a tour manager, and pay taxes first in the US and then in Sweden.”
Publication 515 from the IRS, “Withholding of Tax on Nonresident Aliens and Foreign Entities,” contains a section specifically regarding artists and athletes, pursuant to Income Codes 42 and 43. Taxes are withheld at a 30% rate for independent contractors and at graduated rates for services performed as employees. The guide states, “In any situation where the nature of the relationship between the payer of the income and the artist or athlete is not ascertainable, you should withhold at a rate of 30%.”
Makthaverskan // Photo by Sasha Geffen
Some countries have tax treaties with the US that makes compensation paid to artists for services performed in the US only when the “alien is present for a limited period of time and the pay is within limits provided in the tax treaty.” Artists can claim an exemption under a tax treaty, but often “will have to withhold at the statutory rates on the total payments because the exemption may be based upon factors that cannot be determined until after the end of the year.” With all these requirements, even bands that get their visas approved without issue stand to lose a substantial portion of their proceeds.
While all agree the system is inefficient, some feel like the solution involves less reform and more planning. Inglis explains that for the last visa application he worked on, it cost $2,900 for three people to obtain visas that lasted three years, coming out to $322 per person per year. Their flights, by contrast, cost $3,500. “I don’t hear anyone suggest we lobby Virgin or United for a flight cost reduction for bands,” Inglis says. “Airlines are commercial operations, so we don’t expect any favors.” He mentions that the US Embassy in London dedicates roughly a quarter of the entire building to processing visas — a commercial amount of resources in itself. “UK bands don’t have any inherent right to play in the US,” Inglis says. “The US government isn’t obliged to make it easy for them to do so any more than American Airlines are.”
Inglis tells bands to think of themselves as a small business by running budgets to determine if there will be a deficit and, if so, how they can make it up. He says that most bands operate at a loss the first or second time they tour the US and that they should “go when they can can afford it, or when they can’t afford not to.” Promoters, small labels, and bands often stand to lose big, but the industry, “at the grassroots level, has always been fueled by love and passion.”
“No one’s getting rich,” Inglis says. “The lure of the US is strong, and a loss-making trip can still be hugely profitable in other ways, even if that’s emotionally or spiritually. That’s not to be taken lightly.”
For bands who have to cancel shows because of visa issues, those costs become much more severe. Makthaverskan began their visa process nine and a half months before the start of their tour, but the person handling their case wouldn’t believe that they had viable overseas work. “He didn’t believe it was a real band that had to tour in the US and asked for more and more confirmations on everything all the time.”
Despite how early Makthaverskan began the process, the band had to cancel shows because of delays. Between lawyers, express fees, booking new flight tickets, and going to Vienna to try and expedite the process, the band lost more than $10,000 that they attribute to visa issues. Even with a $5,000 grant they received from the Swedish government, they lost $10,000 on their first US tour and $5,000 on their second. Accounting for taxes, tour managers, vans, and accommodations, the band says that “the expenses never stop.”
Spain outfit Hinds have a similar story. The band planned a tour around SXSW last year and began the process four months before it started, one that cost them around $15,000. Despite the advance notice, their passports didn’t come in time, forcing them to cancel their first flight to New York, miss a show at Baby’s All Right, and nix a day of planned press in the city. They later lost 2,500 Euros to book new flights, with an additional 2,500 Euros sunk into flights related to rescheduling the missed dates. Waiting in Madrid for an answer, the band had no idea when their visas would arrive. “No one was giving us any information in the embassy,” vocalist and guitarist Carlotta Cosials explains. “They said the visas were approved but the passports weren’t ready, or at least weren’t physically in the embassy, so we were still fucked.”
Hinds at SXSW 2015 // Photo by Ben Kaye
For the band, the most challenging part was the sheer uncertainty of it all. “The worst thing is the lack of information, having no idea when you are going to have your passports back, having no idea if it’s going to take two days or 11, and having no idea if you have to cancel a whole tour or only the half,” Cosials says.
The band’s visas were for one year, and they booked a “massive tour” to make the most of that duration. Now that they have to reapply, their past experiences leave them highly uncertain that the process will be any easier or shorter. Cosials believes that every band should be able to tour the US regardless of their size or number of recommendation letters: “Borders should be open to art, always.”
While delays are a large problem, the experience of having a visa denied can be even more disastrous for bands. Earlier this year, the English band Hookworms applied for five working visas to cover the 15-day period of their US tour. They submitted their applications months in advance and paid for “premium processing” to help. US immigration denied their visas four or five days after the tour was supposed to start. “We didn’t even get to the point where we had to go down to the US Embassy for our interviews,” the band explains via email. “No reason was given to us. We’re still completely in the dark on what the issue actually was seven months later.”
The band explained that none of the members had a criminal record and that they had successfully obtained visas and played in New York as recently as the end of 2013. They were offered a Music Export Scheme grant by the British Phonographic Industry to help with tour costs, but it still “wasn’t deemed strong enough evidence in our application to the US embassy.” They never received the grant.
Hookworms canceled their entire tour, losing about 6,000 Euros of their own money between the visa applications and non-refundable canceled flights. Their label, Domino, loaned them money on a short-term basis until they could recoup the losses. “If we didn’t have that financial support from them, we’d have to pull even more shows, because the US tour losses essentially wiped out all of the band money we had accrued over the years,” the band explains. As of now, they still haven’t been able to reschedule the missed dates because of other work commitments.
Hookworms mention other artists, from indie bands like Girl Band and Mogwai to larger acts like Klaxons and Lily Allen, who have been denied visas without rhyme or reason. “We are extremely thankful that we’re in a privileged enough position as a band that a US tour is even a possibility for us, but the whole thing was a pretty crushing process and we’re glad that discussions are being had around a flawed system that is failing many UK and European bands.”
One thing many bands with tour delays have in common is the timing involving SXSW. Inglis explains that there is always a backlog in visa processing because of the number of bands playing the Austin festival, and Wiskoff and King recommend bands start the process before the end of the prior year to be able to play the festival.
For their part, SXSW has staff who work to help bands with the visa process. Alicia Zertuche, Music Festival Coordinator at SXSW and Visa Supervisor, explains that they help bands apply by guiding them, answering questions, and providing letters of support to initiate the process. Once a band is invited to play the festival, members of the booking team begin to provide support.
When it comes to playing SXSW, bands can either apply for the same kind of visa they would for a tour or apply for a B visa (or through a visa waiver program) if they are only “showcasing at SXSW for exhibition purposes.” According to Zertuche, “their activity at SXSW solely involves displaying the talents of the musicians and it’s not labor for hire, hence we’re not buyers or promoters but programmers of a music and media conference.” But for many bands, it can be costly to come to the US solely for official SXSW showcases without a chance to make more money touring before or after.
Zertuche tells bands to apply at least eight to 10 weeks before the date of their departure to give their lawyers or visa agency time to resolve issues if a petition is denied. In Zertuche’s experience, artists sometime apply later, within two to four weeks of their departure, if they cannot secure funding. “It complicates our programming process, especially when they ask us to wait on them in hopes of their funding coming through,” Zertuche explains. “It contributes greatly to our schedule constantly changing because many will eventually drop out.” However, Zertuche also says that it’s rare for bands to have to cancel a trip to SXSW entirely — the organization has encountered every situation imaginable.
According to Zertuche, the timing and delays in processing can vary due to many factors, such as lack of personnel, time constraints in how those personnel can process visas, US embassies being closed on certain days, or even artists being forced to use embassies in neighboring countries. The biggest challenges Zertuche sees are funding and a lack of consistency in the review process. “The various US federal agencies reviewing the applications sometimes deny or request documentation implicitly difficult for the musical act,” she says.
Between visas being denied or delayed for unclear reasons, withholding taxes, and general costs and expenses such as flights or lodging, bands from foreign countries experience multiple barriers to touring the US. Many smaller bands may already expect a loss when touring, but an additional loss caused by delays or cancellations can be devastating. Many artists still have a strong desire or financial imperative to tour the US, but more often bands are forced to reconsider whether touring overseas makes sense. For many European acts, it’s much easier to tour European countries that have significantly fewer barriers to entry.
Most bands still see American tours as an ultimate goal. “American culture always has been a birthplace to music,” Cosials of Hinds explains. “Nobody laughs at a musician. Nobody thinks it’s not a real job, so it’s a real shame that you guys make it that difficult for the rest of the world to go and play in your country.”
Experiencing delays and cancellations can greatly impact artists’ desire to return to the States. “It has definitely dented our will to organize another US tour,” members of Hookworms say. “The number of European bands that have had to pull US tours last minute is really starting to mount up, and the system obviously needs a good look at because it is blatantly not working, or is at least way too hit and miss for smaller bands to risk a financial coin toss on.”
“It’s really annoying and sad to know that if we want to come back after our one-year visa has expired, there’s so many hours of work to get the visas,” members of Makthaverskan explain. “It’s not certain that we have the energy to do that again.”