So, You Want to Play in the States? Read this.

MsRayV0511 Commentary 0 Comments

This may not be the sexiest article you’ll read in a Metal news rag, nor probably as much fun as a good ol’ “Top 10 List of Something.” But, it very well could be one of the most important — especially if you have dreams of taking the stage in the U. S. of A.

If you are one of those dreamers, there is some good news and some bad news. The good news: It’s not impossible. The bad news: It’s a royal pain in the ass.

Better news: you’re not alone and there are people who can help.

Here to explain why it’s such a pain in the ass to bring your show to the New World is our special guest, Mr. Marc C. Gessford, attorney-at-law for Play America who specializes in bringing headbangers to the United States of Metal.

TBS: I understand that Play America is the hybrid result of your passion for Metal and law. Why did you choose to form your own company rather than join a firm?

Yes…and no. I certainly have a passion for rock and metal.  A passion for law?  I wouldn’t call it that.  To better explain, I have been a civil trial attorney for almost 28 years now (I’m 52).  I have never done and have no involvement in immigration law.  I do personal injury, business, contract, property, etc.  It is my career and I am very good at it.  It pays the bills and I like doing what I do more than I would like doing any other career other than playing guitar in a rock/metal band that was hugely successful where I made big bucks just people’s asses with my amazing chops–yes, I want to be John Petrucci or someone of that ilk.  Unfortunately, while I did play guitar for many years in my youth, my skill never rose to any level near my dreams.

I have been a Metalhead all of my life.  I think it began when I was very young — 6 or 7 — and my aunt gave my Iron Butterfly‘s In A Gadda Da Vida album.  Something about the riffing, the tone, etc., the whole song, was mesmerizing. I was hooked and I have never looked back.

MY first “real” concert was Judas Priest supporting UFO in 1978.  JP’s Hellbent for Leather tour and UFO’s Obsession tour.  I can’t count the number of concerts I have been to since then.  Even now, I hit 35-40 “name band” shows a year as well as 2-3 festivals.  I have probably 5000 CD’s sitting in my custom-built CD shelving and a couple hundred concert DVDs/BluRays in the collection.  My (black) shirt collection would blow your mind.

at-the-gates

Gessford (center) with At The Gates, just one of the many, many bands he has helped bring to America

Anyway….

I started going to US festival Progpower USA in 2003. Back then, PPUSA was the ONLY opportunity to see the European bands we US Metalheads were clamoring for.  I have been there every year since. In 2007 (I think), PPUSA promoter, Glenn Harveston, posted on the PPUSA forum that he was looking for someone to assume the visa issues for the fest – he had been dabbling in it himself up to then. I contacted Glenn and explained that I was a lawyer, that I had NO experience with visas, immigration law, etc., but that given my legal training and experience, I could certainly read and understand statutes and I could figure it out.  Glenn “hired” me right then and there and everything has grown from there.

I formed Play America really as a marketing and tax move.  I would not join a firm or office as the visa work is a “side business”.  I work a minimum of 55-60 hours a week (often much more) as a civil trial lawyer with a firm.

I started doing visas for just PPUSA bands, but after about two years, I started getting calls from bands who had heard about me from friends in other bands, etc.  With each band I did I gained another few word of mouth recommendations and those turned into referrals.

As I started to get more and more jobs, I figured that I should start an actual business so that I could start writing off my visa-related expenses and not just pay taxes on my visa-related income.  I have a website that, to my knowledge, no one looks at.  I don’t even look at it and it hasn’t been updated in years now.

TBS: In the most basic terms, what does a band have to do in order to play in the United States? What are the most common mistakes and obstacles they run into?

To make the summary as short as possible: A band has to submit the required forms and paperwork to the American Federation of Musicians (AFM) and get a consult letter from the AFM whereby they do not object to the band getting visas and coming to the US and play. 

That consult letter, the appropriate petition and a host of other required documentation then need to be submitted to the United States Citizenship and Immigration Services (USCIS) and then await the USCIS’s determination.  There is a sizable fee charged by both the AFM and the USCIS for submission to them.

Assuming the petition is approved by the USCIS, each band member has to complete an on-line form (the DS-160) and schedule and attend an interview at the applicable US embassy—usually the US embassy in their home country.  There is a charge of approximately $190 per band member that is paid to the embassy.

It sounds so easy….But it isn’t.

The USCIS has to make specific findings to approve visas for band members.  The determinations are made by USCIS agents.  There are thousands — maybe tens of thousands — of USCIS agents and you never know who will look at your submission or who has made the determination once it is done.  By statute, the USCIS has to determine that a band is “internationally recognized.”

While the statute does give some things that can be looked at to determine if a band is “internationally recognized”, “internationally recognized” is not defined or explained anywhere and most of what is set forth as evidence of it has no applicability to bands, certainly not rock/metal bands. Hence, you need to “guess” as to what you need to submit to make the grade.

with Blind Guardian, another client of Play America's.

with Blind Guardian, another client of Play America’s.

Each individual USCIS agent gets to make his/her own determination as to whether you have succeeded or not.  I can only assume that you face biases of certain agents; there may be some there who don’t care for Metal, especially the type of bands I do for Maryland Deathfest (the extreme bands – grease paint, Satanic imagery, etc) and some of those agents put you through the ringer.  After you submit everything, the USCIS can send you a Request for Additional Evidence (RFE), whereby they tell you that you haven’t made the grade and they invite you to submit additional evidence.

155344674-1You would not believe some of the RFEs I have received.  More often than not, the USCIS asks for things I have already provided and I send them a very detailed letter excruciatingly describing how what I’ve sent addresses everything they say they need.

Some RFEs ask for things that are not required by the statutes. I’ve received 2-3 RFE’s where they ask for the birth certificate of the petitioner (in those cases, the promoters of the festivals the bands will be playing at).  Nowhere in the statutes, regulations, etc., is this required or even mentioned! I could go on for hours about the process.

In the end, I see the visa process like I see the US justice system as a whole.

The US court system is supposed to be for the common man.  However, as a lawyer, I can tell you that there is no way the average citizen could ever successfully maneuver the intricacies of the court system.  To try is to doom yourself to failure.  The same is true of the visa system.  With little exception, there is simply no way that the majority of bands can properly and successfully apply for their own visas.  Hence, the answer to the question of what are the common mistakes are that they fall short at any one of the steps.  This can also be summed up as they don’t get a professional to do it for them.

Also understand that what I have described above is what is needed to get visas for a band. If the band wants to bring its crew, manager, etc., those require separate union approvals (at a separate cost) and separate petitions to the USCIS (at a separate cost).  They also require separate and additional work by the person preparing the visa submission documentation.

Michael Schenker was one of a handful of bands, such as Alestorm and Obscura, who suffered a loss due to visa issues. http://www.contactmusic.net/michael-schenker/news/michael-schenker-forced-to-reschedule-u-s-dates-over-visa-issues_4653089

Michael Schenker was one of those “handful of bands,” including Alestorm and Obscura, who suffered a loss due to visa issues last year. Michael Schenker Forced to Reschedule US Dates Due to Visa Issues – Contact Music

TBS: Last year, there were a handful of bands who were unable to tour due to visa issues. Do you know what those issues could have been? Could they have been avoided?

I don’t know what the specific issues were as to any of the bands who made the news (Blabbermouth, etc.) with “visa issues” as their excuse for not being able to tour, make part of their tour, etc.  Hence, my immediate comments here are pure speculation.

I suspect that in some cases, the “visa issues” are not visa issues at all.

It is just an excuse to hide that the band had other non-visa issues that caused them to cancel, etc. — they realized they didn’t have the money to do it;  ticket sales were not what they needed to make money, they decided they would rather stay “home” and complete a new album, etc.  It may be that the band was originally planning on coming over without visas, to come in as tourists (which many bands still do/try) and someone finally told them the folly of that plan too late in the game. Sometimes they land in the US without visas and get caught by customs, who, after 5-10 hours of questioning and holding, put them back on a plane home without their ever having left the US airport.

Assuming a band did the right thing (legally) and petitioned for visas, the biggest issue they had in all probability is that they started the process too late. There are a few premises here:

(1) Most foreign bands don’t need special visas to go from country to country throughout Europe, South America, etc.

They hop in a car/bus, plane, train, etc., with their passports and off they go. Hence, absent prior experience with the US system, they think that they will simply have to do a few things a few weeks before they hop a plane to the US and start their tour. Could not be more wrong.

(2)  Most tours and performances are confirmed with promoters, venues, etc., literally a few months prior to the performance date(s).

Other than major bands who announce their tours 6-8 months prior to their tour or festival appearance, most bands don’t have a definite plan/itinerary for their tour until 2-3 months before it starts. Think about when you hear of most tours of the bands we want to see; it is announced maybe 2-3 months before the start of the tour, often less.

(3)  You have to get the AFM  approval/consult before you submit to the USCIS.

The AFM regular processing takes approximately two weeks from when they receive the required documentation to when they give you their approval/consult letter.  YOU can expedite that to two business days after their receipt for an additional $100.

(4)  Most, if not all, of the work for the visas needs to be done before you can submit to the AFM.

In a vacuum, I can gather what I need to do a submission in a few days.  However, there is information I need from the band and that is what takes a while in my experience. It never ceases to amaze me that I ask a band for information and documents that literally should take them 10 minutes each member and I sometimes won’t get what I asked for for months and, even then, only after hounding the shit out of the band.  Some bands are very quick. Some are incredibly slow and most are in the middle somewhere.  But if you assume that a band moves relatively quickly in getting me what I ask for, I can have everything done in less than a week before submission to the AFM.

(5)  Most importantly: the USCIS is horribly backlogged and slow.

The USCIS handles approximately 6,000,000 visa requests a year.  https://www.uscis.gov/tools/reports-studies/immigration-forms-data.  That’s SIX MILLION A YEAR!  This, of course, includes all types of visas based on all types of situations.  I have no idea, but I would venture to guess that band/artist visas account for an infinitesimal fraction of visa applications, maybe a few thousand between bands, etc., of all genres (Rock, Metal, Folk, Pop, Cultural and World music, etc.).

with Serious Black

with Serious Black

When I started doing visas in 2007 (I think), the average turn-around time from submission to the USCIS until their determination was 3-4 weeks (I sometimes had the determination in 2 weeks). For the last 2-3 years, the average turn-around time is 3-4 months and it can be longer.  If you get an RFE. I don’t care how fast you turn it around, the USCIS won’t even consider it for 30+ days after you submit the “additional evidence” – and they tell you they will give you a response within 90 days so they have a full 3 months. That’s in addition to the 3-4 months they took to make the determination they needed more evidence!

Again, if you want Premium Processing, which will get you a determination within 15 business days of the USCIS’s receipt of the petition, etc., that is an additional $1225.

(6)  Again, after receipt of the approval from the USCIS, each band member still needs to fill out the online DS-160 form and make an appointment at the US embassy they will interview at.

Some embassies can get a band in pretty quick – two weeks or so from when the band makes the reservation.  Some embassies, however, have a long wait before they can get a band in, one to two months or more.  When they go to the interview, each band member has to hand over their passport and then the embassy sends them back the passports with the visas in them via mail.  Hence, there is another week or so between the interview and when the band members get their passports back and can hop the plane to the US.

So…taking the above in combination, if a band wants to save the money ($1325 between premium processing for AFM and USCIS) and go regular processing, even under the best of circumstances, the visa petition process needs to be started 5-6 months prior to the first US performance date AT A MINIMUM.

As I write this, I am taking a break from working on the visas for the bands who will be performing at PPUSA 2017 in September, 10 months away. I can’t count the number of bands who have contacted me and wanted me to do the visa work for their US performances that start in 4-6 weeks.  I give them the honest story and tell then what it will cost due to the added premium processing that will be required. They tell me that will get back to me and then I never hear from them again, which is completely understandable.

In the end, most bands simply don’t have their itinerary, etc., in time to get their visas absent premium processing, which most bands can’t or won’t pay for. In a lot of cases, the bands do know well in advance but don’t address the visa issue until it’s just too late. In many cases, support bands don’t know they will be on a tour until shortly before the tour starts.

For those bands that had to cancel their tours or come in partway through the original scheduled dates, I would bet dollars to donuts that the cause was that they started the process too late.

TBS: What will this price hike mean for the foreign artists? Do you feel that it’s counter-intuitive, as it would restrict economic opportunities?

The price hike is $135.  In the grand scheme of things, it really shouldn’t make any difference as a practical matter.  However, it is something that will probably have a much wider affect than it should as it is just another thing to bitch about.  If the additional $135 effectuated a change in the USCIS processing, it was quicker, etc., then it would be more than worth it.  However, it a raise in cost with no value added.  The USCIS is under such constant and unrelenting criticism and attack from all fronts, having a rate hike while not effectuating any change is just adding insult to injury.

In light of the constant complaints about how the cost of visas are preventing bands from tour in the US, I do have to point out a few things:

(1)  The actual cost of the visas isn’t “that bad.”

What bands pay most for usually is the cost of the service that is doing the visa work for them.  My charge for a band, regardless of how many members in the band, is $2000.  This includes all fees paid to the AFM and USCIS, all copying, postage, etc. It also includes my work–which is usually in excess of 12-15 hours per band.  From what I hear from touring bands who have used someone else, they have paid $3500-$4000 to firms who do LESS than what I do.

I know that a popular Canadian 3-person band (not Rush!!) pays $5000 to the firm they use each and every time they get visas–and they tour the US every year to every year and a half.  Most firms that do visa work charge separately based on the number of members in the band, etc.— I don’t.  I don’t “line item” my charges; they are the same if there are 15 members of the band or if there are 3 people in the band. This is because the AFM and USCIS costs are the same regardless of how many band members there are and the work that needs to be done to demonstrate the band is “internationally recognized” is the same in either case.

with Refuge (Not Rush!)

with Refuge (Not Rush!)

The actual expenses and work are exactly the same for a 3 person band as they are for a 15 member band. Hence, my charge is the same either way. Get a better price on the visa work and the visas shouldn’t be the problem that prevents a band from coming to the US.

Besides the cost, the difference between me and these other firms is that I do all of the gathering of media and other documentation to establish that the band is “internationally recognized.”  As I have heard it, the other firms require the band to gather the documentation evidencing international recognition and bands really have no idea what that is or how much of it they need.  I do not rely on the band at all for the necessary documentation–because my experience is that they simply can’t and won’t do it.  I spend hours and hours gathering materials.

On average, I provide 400-500 pages of documentation to the USCIS for every band I do.  For bigger and/or older bands, e.g., Blind Guardian, My Dying Bride, Samael, Candlemass, At The Gates, etc., I will do 800 or more pages simply because they have more albums and more media available about them.

(2)  Understand the breadth of the US in comparison to other countries bands tour.

That is where the real expense of touring the US comes in.  For European bands especially, they can tour essentially all of Europe via bus, van, train, or short inexpensive plane rides.  They can cover 15 countries in three weeks. Most times, the band plays for two weeks or so, goes home for a week or two, goes back out for a few weeks and then comes home and that is a European tour.  Even playing most other large non-European countries that are not the US are fairly short with few dates.  How many places do bands play in Russia, Japan, South America, Mexico, Australia, etc.?  Most of those “tours” are 3-5 dates at most.

The US is a massive financial undertaking.  There are much more expensive flights.  Crossing the US on tour with most appropriate cities being hit necessitates being her for 30-45 days at least.  That’s a lot of bus cost, gas cost, hotel cost, food cost, etc.

geographical-map-of-united-states-3655

Give this some thought: the entire country of Germany is approximately 2/3 the size of Texas.  Same with Sweden.  England is less than 1/5 the size of Texas.  The entire United Kingdom is approximately 2/5 the size of Texas.  Italy is less than 1/2 the size of Texas.  You could fit both Norway and Finland in Texas. The United States is just a little less in area than the entirety of Europe, which contains approximately 50 separate sovereign states (countries).  The biggest cost bands face in touring the US is simply the size of the US itself and how long they need to be here to “do it right.”

TBS: What will this price hike mean for the fans?

Again, it is $135.  It really shouldn’t cause an increase in ticket prices, etc.  However, as I mentioned above, there will probably be more of an emotional response to the cost hike and bands may balk or complain more because of the cost increase and use it as a reason/excuse to not tour, etc.  To the extent that occurs, it harms the fans because they won’t some of the bands playing the US that they would like to see and would otherwise get the opportunity to do so.

TBS: What do you think should be done? What can we do?

As with anything to do with our government, I don’t think we can do anything.

I hate to be the pessimist, but that is my experience and that is the experience I see in others.  My God, as we near the presidential election (one week away as I write this), can we actually believe that we can make a change. We can’t make a change to the big things of our country — gun issues, police issues, racism, violence, LGBTQ issues…the list goes on.  Immigration re: refugees, illegal aliens, etc. are MAJOR issues for the US and we haven’t begun to be able to fix those.  I simply doubt with all my heart and soul that signing petitions and writing our congressmen, etc., will make them all stop what they are doing and focus on fixing the system so as to allow the infinitesimal number (cosmically speaking) of bands and musicians that want to come to the US to perform to do so cheaper and easier.

Signing the petitions and writing the congressmen certainly isn’t going to hurt, but is it going to help?  I say no way, but I do not mean to discourage anyone who wants to try.  I think that the best course of action is simply to accept the system we have forced upon us, learn to work within it and simply do the best that we can.

What I can say is that I have done visa work for a few hundred bands now, I have had only one case where the visas were actually denied.  One. I’ve had a lot of RFEs and I’ve fought a lot of battles and suffered many extremely anxious periods, but through what I would like to say is hard work, dedication, and creativity, more than 99.9% of the visas I have petitioned for have been granted.  I put that up against anyone who has done more than a few visas.

Marc, if you could say anything you haven’t said above, including if you wanted to give yourself a shameless plug, what would you want to say? [Editor’s note: This was not an official question from The Black Siren. But, it’s a sweet rant, so what the hell, we’ll let him have it. — TRV]

home2_07

I do the visa work as a labor of love to a large extent. I don’t make much money from it.  I do it because I want to see these bands play.  Where possible, I see most of the bands I do visas for–probably 75-80% of them if they come to Northern California or even somewhere I can drive to, somewhere I can fly to them.

I also do it because I am a fanboy.  A 52-year-old hardcore fanboy. I love working with the bands. I love getting on their tour bus or going backstage before or after a show and hanging with them and just shooting the shit with them. 

eclipse

w/ Eclipse

I have found 99.9% of all band members, promoters, managers, agents, etc., I deal with to be incredibly nice and very appreciative. My law office is wall-to-wall framed photos of bands, me with bands, me with members of bands, signed band photos, etc. There are hundreds of them.

I have been a member of the metal community for 40+ years and I do want to do what I can to help it continue and help it grow.  I still see the metal community as so different from any other community.

Among true Metalheads, not just the troglodytes who go to Sabbath, Priest, Metallica, etc., shows to get shitfaced and violent. I have not seen racism, hatred, intolerance, etc.  As have all of us, I have seen the craziest mosh pits come to a screeching halt to pick up someone who has fallen, I have seen pits treat women with appropriate care instead of the rhino slammings of the big dogs in the pit. I have seen young kids wearing earphones/ear protection on their parent’s shoulders raising the horns in the middle of a packed show.

No one has ever gone hungry or thirsty at a Metal show, someone will always buy you a bite and/or a drink.

No one is ever lonely at a Metal show; everyone is your friend and you can come upon any group of people who are having a conversation and you can just join in.

The black concert/band shirt is like a secret club card or handshake. That is not to say that we all don’t find a lot of us weird in many, many ways. We do, however, acknowledge and embrace your weirdness and it is never a reason for your exclusion.  When I speak of us to non-Metalheads, I refer to the Metal community as being like the Island of Misfit Toys and that is why we love Metal and why Metal plays such a large – prominent — part in our lives.  We are the people standing outside by the band bus in the rain at 2:00 am just to see if we can get a picture, signature or something from/with the band.

We’re all at least a little bit “strange” in relation to “normal” people and that’s exactly what we want to be.  We love it in ourselves and we accept it in our Metal brethren and sisters.

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If you have any further questions or in need of some visa assistance, contact:

Marc C. Gessford
Play America
5317 Flyway Drive
Fair Oaks, California USA 95628
916-350-1919

Official Play America Facebook page

Also visit: Metalheads For Life at Metalheads for Life.org and Metalheads for Life official Facebook pageWhere Hearts and Horns Unite.

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