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THE ARTIST VISA UPDATE FROM HELL as of July 17, 2018

Tuesday, July 17th, 2018

By Brian Taylor Goldstein, Esq., Robyn Guilliams, Esq., and Christopher Dowley, Esq.

I hope everyone is having a wonderful summer…because we are just about the ruin it. So be prepared for some serious sunburn, chiggers, sand fleas, and food poisoning as we give you the latest updates:

 

 

I.    NEW USCIS POLICY ALLOWS VISA PETITIONS TO BE DENIED WITHOUT FIRST ISSUING AN RFE

Effective September 11, 2018, USCIS adjudicators will have “full discretion” to deny visa petitions without first having to issue a “Request for Evidence” (“RFE”) or a “Notice of Intent to Deny” (“NOID”).

This new policy reverses the existing USCIS policy on RFEs, dating back to 2013, whereby, except in extreme cases where a petition was clearly deniable or there was no possibility of approval (such as requesting the wrong visa category), USCIS adjudicators were instructed to issue an RFE or a NOID and provide a petitioner an opportunity to provide additional evidence or correct any deficiencies prior to denying the petition. According to the USCIS Policy Memorandum issued (ironically) on July 13, 2018, the new RFE policy “restores to the adjudicator full discretion to deny applications, petitions, and requests without first issuing an RFE or a NOID, when appropriate.” The new policy memorandum provides the following examples of situations where a petition can be denied without an RFE:

  • If, in the sole discretion of the USCIS adjudicator, the petition was submitted without sufficient evidence; or
  • Where the petition does not contain a statutorily required form or submission.

In other words, even simple oversights such as failing to provide a no-objection letter from the correct union, forgetting to submit a contract, or merely forgetting to check a box or sign a form could result in a denial of the entire petition with no opportunity to fix the problem without re-filing the entire petition! You will only know what was wrong AFTER the petition has been denied. While there will remain an opportunity to file an appeal, appeals can take months and,   given that an adjudicator has “full discretion”, there is little change of an appeal being granted anyway.

According to the USCIS July 13, 2018 Policy Memorandum:

This policy is intended to discourage frivolous or substantially incomplete filings used as “placeholder” filings and encourage applicants, petitioners, and requestors to be diligent in collecting and submitting required evidence. 

Whilst on his way to the arctic to club a baby seal, USCIS Director L. Francis Cissna further explained:

“For too long, our immigration system has been bogged down with frivolous or meritless claims that slow down processing for everyone, including legitimate petitioners. Through this long overdue policy change, USCIS is restoring full discretion to our immigration officers to deny incomplete and ineligible applications and petitions submitted for immigration benefits…Doing so will discourage frivolous filings and skeletal applications used to game the system, ensure our resources are not wasted, and ultimately improve our agency’s ability to efficiently and fairly adjudicate requests for immigration benefits in full accordance with our laws.” 

Indulge me to offer my own translation:

“For too long, our immigration system has been bogged down with people from other countries trying to obtain visas. By gaming the system so that petitioners will no longer  know in advance why their visa petitions are being denied, we can greatly improve our ability to deny petitions more efficiently and, thereby, continue to make America great.”   

 Accordingly, we are recommending the following:

  • If you can’t decide from which union to obtain a no-objection letter, get a no-objection letter from all of them.
  • Do NOT use letters from peer organizations where there are unions that might possibly be willing to issue a no-objection letter.
  • Make sure that all itineraries include the FULL names and addresses of all venues, employers, presenters, etc.
  • If engagements have been booked through an agent, provide a copy of the written agreement between the artist and the agent, as well as proof that each venue, employer, presenter, etc. has authorized the petitioner to be the petitioner.
  • As there are no longer any second changes, throw everything you can into the petition–background materials on each venue, each award, each expert, and each publication, etc. Make no assumptions. Unless your concert pianist has also been on America’s Got Talent, the USCIS adjudicator will have no frame of reference.
  • Do not assume that just because an artist has previously been approved, that you can give less evidence the next time. Approach each petition as if it’s the first one.

Given the increased risk having a petition simply denied with no notice, we are also recommending premium processing for most petitions. At the very least, you will know sooner rather than later if you will have to re-file the entire petition.

Should you actually want to read the July 13, 2018 Policy Memorandum, pour a glass of rum and go to the following link:

July 13, 2018 USCIS Policy Memorandum 

 

II.    USCIS IS BEING TASKED WITH IMMIGRATION ENFORCEMENT

Officially, USCIS was never meant to be tasked with immigration enforcement. Rather, the purpose of USCIS was strictly limited to the adjudication or administration of immigration benefits, such as processing applications for visas, green cards, naturalization, and humanitarian benefits. Instead, Immigration Customs and Enforcement (“ICE”) was charged with the enforcement of immigration laws and violations. As a result, whilst USCIS regularly reported cases of fraud or misrepresentation to ICE, denials of visa petitions, even in instances where a beneficiary was determined to be a “status violator” (ie: performing illegally in the U.S.) or an “overstay” (ie: remaining in the U.S. after they were supposed to leave), were not.

On June 28, 2018, USCIS issued a new Policy Memorandum whereby, effective immediately, USCIS adjudicators have been instructed to issue a notice to appear before an immigration judge (“NTA”) to all beneficiaries whose lawful status expires while a petition or request is pending before USCIS!   

This will have a major impact on artists and students in the U.S. who seek to extend their O or P status, change their employer, or seek to change their status to a different nonimmigrant classification while remaining in the United States. Current Immigration laws allow a person to file a visa petition or an extension or change of status and remain in the U.S. provided the petition is filed while the beneficiary’s underlying nonimmigrant status remains valid. For example, an artist whose O-1 visa is about to expire can file for a new O-1 and remain in the U.S. so long as the new petition is filed before the artist’s current O-1 expires. However, due to lengthy USCIS processing times, it is not uncommon for the artist’s O-1 status to have expired by the time USCIS adjudicates the petition.

Under the new policy, if the petition is approved, there is no problem. But if the petition is denied, under the terms of the new policy, the beneficiary would be issued an NTA and would be required to appear before an immigration judge and, possibly, be subject to deportation proceedings.

According to the USCIS Policy Memorandum, “USCIS is updating its NTA policy to better align with enforcement priorities.” USCIS Director L. Francis Cissna paused from munching on a dead puppy to further comment:

“For too long, USCIS officers uncovering instances of fraudulent or criminal activity have been limited in their ability to help ensure U.S. immigration laws are faithfully executed. This updated policy equips USCIS officers with clear guidance they need and deserve to support the enforcement priorities established by the president, keep our communities safe, and protect the integrity of our immigration system from those seeking to exploit it”

 Permit me once again to offer my own translation:

“For too long, USCIS officers have been uncovering instances of foreigners actually entering the U.S. This updated policy equips USCIS officers with the tools needed to support the president’s policies of keeping those people out.”

Accordingly, we are recommending the following:

  • When an artist wishes to obtain a new O or P visa, advise them to leave the U.S. at the end of the artist’s current O or P classification, wait for the new petition to be approved, obtain a new visa from a U.S. consulate, and then re-enter.
  • In situations where an artist wishes to change status or extend a current status whilst in the U.S., the petition should be filed far enough in advance so that the petition can be APPROVED before the expiration of the artist’s current status;
  • The artist should engage in no performance activities (paid or unpaid) in the U.S. after the expiration date of their current visa classification.

Should you actually want to read the June 28, 2018 USCIS Policy Memorandum, pour another glass of rum and go to the following link:

June 28, 2018 USCIS Policy Memorandum

III.    ALL VISA PETITIONS FROM CURRENT OR FORMER STUDENTS WILL BE VETTED FOR STATUS VIOLATIONS

Effective August 9, 2018, when any student in F, J, or M status who was admitted to the U.S. for “Duration of Status” (“D/S”) files a visa petition for a different visa (such as an O or P), USCIS adjudicators are being directed to investigate exhaustively whether or not such student is or ever was a “status violator” (ie: performed illegally in the U.S.) or an “overstay” (ie: remained in the U.S. after they were supposed to leave.)

USCIS has never been particularly keen to approve recently graduated students for O visas, particularly if they sought to do so whilst remaining in the U.S. Regardless, under the existing, soon to be replaced, USCIS policy, when a student sought to obtain an O or P visa the student was given “the benefit of the doubt” about how long they were admitted to the U.S. before being considered to have violated their status (ie “performed illegally”) and/or remained in the U.S. after they were supposed to leave (an “overstay.”) A student who is or was in the U.S. on an F, J, or M visa was only determined to be an “overstay” or a “status violator” if USCIS “formally” determined there to be a violation of status. Even then, the student was only determined to be in the U.S. illegally AFTER this formal finding and never retroactively, or without notice. In other words, USCIS was less concerned with whether or not the student had violated their F, J, or M visa than determining whether or not the student was eligible for the O or P visa in the first place.

No longer.

Pursuant to a USCIS Policy Memorandum issued on May 10, 2018, on or after August 9, 2018, USCIS adjudicators have been instructed to pursue what amounts to a “no stone left unturned” policy whereby they are expressly empowered to asses all the available historical and background material collected on each individual student, using all the tools in the toolbox to establish a violation or overstay and consequent accrual of unlawful presence. Specifically, a student will be presumed to be unlawfully present in the U.S., without a formal finding or notice, on the earliest of the following:

  • The student fails to continue or complete their course of study, or authorized activity (including failing to completing optional practical training plus any authorized grace period);
  • The student engages in any unauthorized activity—such as performing without work authorization (even for free!)—not permitted by their F-1 status;
  • The student fails to leave the U.S. the day AFTER the date of completion of study/authorized activity and/or the approved grace period;
  • The student fails to leave the U.S. on the specific date, if any, listed on their I-94; or
  • The student stays in the U.S. after the completion of her course of study or authorized activity (including the completion of optional practical training plus any approved grace period)

Moreover, pursuant to the June 28, 2018 USCIS Policy Memorandum discussed previously, such violations will be presumably be reported to ICE.

Traditionally, when a student on an F, J, or M visa comes to us seeking an O or P visa, we have traditionally advised that, so long as the O or P petition is “filed” prior to the student’s graduation or OPT expiration (plus any grace periods) the student will not be considered an overstay. Moreover, so long as the student does not engage in any performances (even for free!), the student will not be considered to have violated their status. However, after August 9, 2018, we will be advising all students on an F, J, or M visa who seek an O or P visa, the following:

  • Do not ask for a Change of Status from F-1 to O or P. Rather, file a petition and then leave the U.S. whilst the petition is pending.
  • If they must ask for Change of Status:
    • Make sure they have significant professional (non-academic) credits and achievements; and
    • File the petition far enough in advance so that the petition will be approved before the expiration of their current F-1 status or OPT expires.

Should you actually want to read the May 10, 2018 Policy Memorandum, add some bourbon to that glass of rum and go to the following link:

May 10, 2018 USCIS Policy Memorandum

IV.    CURRENT UCSIS VISA PROCESSING TIMES RANGE FROM 3 WEEKS TO 3 MONTHS

Visa petition adjudication times at both the Vermont Service Center and the California Service Center are currently wildly unpredictable—currently taking anywhere from 3 weeks to 4 months. We have been able to find no pattern, consistency, or predictability. Moreover, as always, the USCIS case processing times website is completely useless and inaccurate. Please plan accordingly—which, for our office, usually means premium processing and then the whole office heading out for happy hour.

Can you mix vodka with bourbon? Time to find out.

V.    THE IRS HAS MADE A SIGNIFICANT CHANGE TO CWA ELIGIBILITY

Not content to let USCIS have all the fun, the IRS has announced that beginning October 1, 2018 nonresident performers must earn $10,000 or more in gross income (within the calendar year) to qualify for a CWA.

The $10,000 threshold applies to individual performers, so if individual members of a group gross less than the threshold amount, they are not eligible for a CWA.  But – keep in mind that gross income includes per diem payments, merchandise income and potential overages (not just artist fees!)

Unfortunately, performers who don’t qualify for a CWA due to the income threshold are subject to 30% withholding.

For more details, commencing banging your head on your desk and see: https://www.irs.gov/individuals/international-taxpayers/central-withholding-agreements.

VI.    AND LET’S NOT FORGET ABOUT THE U.S. CONSULATES

  • We were recently reminded by the U.S. State Department that approximately a year ago the Trump regime revoked the 2012 Obama Executive Order which called on all U.S. Consulates to shorten visa wait times. So, naturally, there are now longer wait times. 
  • Despite the fact that, officially, artists are not required to bring original I-797 Approval Notices with them when they apply for a visa at a U.S. Consulate, reports abound of consular officers hassling artists and insisting that they must have the original. Some officers are also insisting that the artist bring an entire copy of the visa petition with them. There are also increasing reports of similar requests by immigration officers upon an artist’s entry into the U.S. at the border or an airport. As a result, we are recommending:
    • That, where, possible, artists bring the original I-797 approval notice with them to the consulate; and
    • That artists be given copies of the relevant bits of their petition—which would include copies of the forms, itinerary, contracts, and a sample of the evidence.
  •  Any artist seeking to apply for his or her first O-1, should continue to avoid the U.S. Consulate in London at all costs.
  • Artists from Iran, Iraq, Libya, Somalia, Sudan, Syria, Yemen, North Korea, and Venezuela are not going to be issued visas. Don’t bother. Artists who were born in these countries, but now have citizenship in other countries, or have parents from these countries, or have ever visited these countries, MAY or MAY NOT get visas, but its going to take much longer for them to be processed at the consulate—like 3 – 4 months. In addition, artists who have any relationships, connections, or have made visits to any other countries in the world that the Trump regime does not like, also MAY or MAY NOT get visas, but its going to take much longer for them to be processed at the consulate as well. In short, who the hell knows? We don’t. Stop asking.

 Time for TEQUILA!

VII.     NEW USCIS I-907 FORM FOR PREMIUM PROCESSING 

On June 26, 2018, USCIS revised and issued a new I-907 form to request premium processing. Other than moving things around and making the form longer, nothing really significant has changed. Regardless, starting August 28, 2018, USCIS will only accept the I-907 marked 06/26/18.

Starting to feel woozy.

VIII.     SOME FINAL THOUGHTS

For those of you who have managed to read this far, click here for a rare behind the scenes look at how USCIS policy is made:

We are living in challenging times and the rules can change at any time. As always, for official and reliable visa information, we recommend:

1) www.artistsfromabroad.org

2) The USCIS website: www.uscis.gov

3) The US Department of State website: www.travel.state.gov

4) The US Customs and Border Patrol website: www.cbp.gov

5) The American Immigration Lawyers Association (www.aila.org)  

You can also always find updated information on the “resource” page of our website: www.ggartslaw.com. And if there’s something in particular you want to know about, be sure to contact us!

_________________________________________________________________

For additional information and resources on this and other legal, project management, and business issues for the performing arts, as well as to sign up for our newsletters and follow us on social media visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.com

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. Questions will be answered ONLY in future blogs. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

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Posted in Law and Disorder: Performing Arts Division, Taxes, Touring, Visas | Comments Closed

Never Rent Your Theater To Cannibals

Thursday, July 14th, 2016

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

We have a non-profit theater company with our own performance space. We are looking for additional ways to increase our revenue stream within the terms of the lease. Two questions: Can a non-profit collect revenue for rented space or must it take the form of a voluntary donation? Do you know off hand if there are tax implications?

Yes, you can definitely collect revenue for the rented space.  However, this is called Unrelated Business income (UBI) by the IRS, and it would constitute taxable income as it’s not related to you non-profit’s mission as a theater company—assuming, of course, that the missing statement filed with the IRS does not include running a catering hall. This might be different if you were renting the space to other non-profit organizations constituent with your own mission, such as local dance groups, community theater, theater camps, etc.

Regardless, I wouldn’t try calling the rent a “voluntary donation” to avoid the taxes.  It’s not voluntary if the lessee is required to pay it, and it’s not a donation if the lessee is receiving something of value in return for the money. Being entrepreneurial is admirable. Committing tax fraud is not.

In addition to considering the tax implications, you should also consider the liability and insurance implications as well. Regardless of who rents your space, should anyone be injured while on your property, your organization will be the one named in a lawsuit—especially if you will be renting it for any purpose that will involve children—the little darlings are pits of liability! While it’s a great idea to make any renters be responsible for any damages or claims, you need to require them to have insurance as well as obtain your own independent insurance. Making a renter contractually responsible does not mean they will actually pay.

Lastly, in additional crafting a well-drafted rental agreement (which means having terms that actually apply to your group, as opposed to borrowing a template from the strip club down the street that rents itself out for bachelor parties), you want to have specific written rules and guidelines as well as the ability to refuse to rent to any group or organization that you deem to be inappropriate—provided, of course, that such decisions are not made for discriminatory reasons. Just as people will blame your organization for any accidents or injuries that occur on your premises, people will associate you with tacit approval of any group or organization that rents your premises. So, hosting the North American Association of Cannibal’s Annual Banquet and Pot Luck may not be a wise idea.

__________________________________________________________________

For additional information and resources on this and other GG_logo_for-facebooklegal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.com

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

 

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

 

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Posted in Arts Management, Insurance, Law and Disorder: Performing Arts Division, Taxes, Venues | Comments Closed

Beware of Wolves In Expert Clothing!

Thursday, March 3rd, 2016

By Robyn Guilliams, Esq.   

Dear Law & Disorder,

I am a member of a band in Canada, and we do quite a few performances in the U.S. each year.  Our accountant has always told us that we don’t need to file income tax returns in the U.S., because the band is incorporated, and also because our U.S. fees are exempt from tax in the U.S. under the U.S. / Canada tax treaty.  We haven’t had any problems for the past four years, but now the IRS is contacting each of the venues for our U.S. shows, and telling them that they have to withhold tax of 30% of our gross.  The IRS also says that each band member must file individual U.S. tax returns for the past seven years, AND that our corporation doesn’t shield us from U.S. taxes.  Help!  Our Canadian accountant claims that he is an expert regarding U.S. taxes, but I’m worried he might not be.

Oh dear – I’m sorry to hear about your tax mess.  It certainly sounds as if your Canadian accountant is no expert!  I’m afraid I hear this sort of story quite often.  Many of our clients have come to us after a so-called “expert” handled their U.S. taxes (or visas) and got them into a world of trouble with the IRS (or USCIS).

The IRS is correct in telling you that any nonresident individual who works in the U.S. must file an individual U.S. tax return.  (There are a few VERY LIMITED exceptions to this rule, but none apply here.)  You may owe no tax.  Perhaps your net income was below a certain limit (or sadly, nonexistent), or perhaps you qualify for an exemption from U.S. tax under the U.S. tax treaty with Canada.  Still – you must file a return to report your income!  After a certain amount of time, you lose the right to deduct your expenses (i.e., you’ll be taxed on your gross income), and you’ll lose your right to claim a tax treaty exemption.

U.S. tax laws and regulations are extremely complex, especially concerning taxation of nonresidents.  As an example, this regulation is just one of many concerning nonresident tax withholding. Welcome to my world!

A knowledgeable tax advisor can help an individual to reduce his or her tax liability, which may save a performer or group a substantial amount in U.S. taxes.  On the other hand, an incorrectly prepared return can trigger an IRS audit!  At the moment, I’m working with five – FIVE – nonresident clients who are being audited.  In each case, the return was prepared a self-professed “expert”, and it included numerous errors, including mischaracterizations of income and/or expenses, claiming exemptions or deductions to which my client was not entitled, and failing to include required schedules and attachments.

Here are a few helpful hints for those in search of assistance in preparing a U.S. nonresident (or any other) return:

  • Check out the IRS’s “Tax Tip” on choosing a preparer at https://www.irs.gov/uac/Choose-Your-Tax-Preparer-Wisely.
  • Before hiring any tax preparer, check his or her credentials on the IRS website at http://irs.treasury.gov/rpo/rpo.jsf.
  • Be aware that, by law, anyone who receives payment to prepare a tax return is required to obtain a Preparer Tax Identification Number (PTIN) from the IRS, and to sign and include their PTIN on all client returns.  A PTIN always begins with “P” and is followed by eight numerical digits.  If your preparer does not have a PTIN – run away!

I hope this is helpful to you!

__________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook legal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.com

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

 

 

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Posted in Central Withholding Agreements, Law and Disorder: Performing Arts Division, Taxes, Touring, Uncategorized, Visas | Comments Closed

International Touring: A Report From The Front Lines

Thursday, November 19th, 2015

By Brian Taylor Goldstein, Esq.

As the U.S. Legal Advisor to the International Artist Managers’ Association (IAMA), I’ve been asked to prepare an update on a variety of current issues involving international touring at the next membership meeting in London on November 27, 2015. Not only do I adore IAMA, but as this would provide a lovely excuse for my wife and I to avoid having to spend Thanksgiving with either of our families, I was more than happy to agree. Robyn Guilliams and prepared this report, I thought I would share it with all of you…

Visa Stercus

1.  USCIS is presently taking a minimum of 8 – 10 weeks to process visa petitions at both the Vermont and California Service Centers. This means that, as of today, if you need to have an artist enter the U.S. any earlier than March 2016, you need to pay the additional $1225 for premium processing. (The official visa processing times that USCIS posts on its website have always been purely propaganda and should always be disregarded as such.)

    • As a reminder, visa petitions can be filed up to one year in advance of the performance date.

2.  For those of you who have Canadian musicians eligible for P-2 visas, we are receiving reports that Canadian AFM is experiencing a backlog in preparing filing petitions. This is in addition to the current USCIS processing time of 8 – 10 weeks.

3.  I’ve said this before, but the message not getting through, so its worth repeating. ARTISTS CANNOT DO ANYTHING IN THE U.S. ON A TOURIST VISA OR ESTA (Visa waiver) STATUS!!  Please stop listening to the colleges, universities, and festivals that tell you otherwise. They have nothing to lose other than perhaps having to find a replacement artist. On the other hand, I have recently learned of two artists—one from Germany and the other from Spain—who have had their ESTA status permanently revoked because they tried to enter the U.S. in ESTA status to perform in the U.S. Both artists had entered multiple times in the past and one were merely entering to “perform” a master class.

    •  It doesn’t matter whether an artist is paid or unpaid, whether the concert is free, or whether the performance is for educational purposes. They must have an appropriate visa—most often an O or P visa. United States Immigration Officers are taking this very seriously.

4.  In preparing visa petitions, please start collecting and providing the evidence USCIS wants as opposed to giving them what you have lying around in your press package. The days of being able to supply a bio and a few press articles are long gone and we are seeing more and more visa denials and delays because of this.

    •  I recently, and with much regret and sadness, had to advise a client to re-cast a role because the artist’s European management was simply refusing to cooperate in our efforts to obtain a visa for the artist. (In case that manager is reading this…no, USCIS will not “just google the artist to find out how famous he is!”)

Tax Stercus

1.  For those of you waiting to receive a refund check from the Internal Revenue Service (IRS) for a non-U.S. artist who has had 30% withheld from their gross engagements fees and are due a tax refund, please be advised: the check is NOT in the mail, and won’t be for the foreseeable future. The IRS has added an extra layer of scrutiny to nonresident tax returns involving refunds. Aside from the usual 2 to 3 month processing time, there is a second review to be sure that everything on the 1042-S form is accurate and complete.  If the IRS senses ANYTHING off, the taxpayer will receive a letter asking for more info. To be fair, the IRS has announced that it will be paying interest on all overdue refund checks. To be practical, it doesn’t matter how much interest they offer to pay if, in fact, they never issue the refund.

    • Bottom Line: There is currently a very good chance that if 30% is withheld from an artist’s engagement fee, the artist will not get that money back…or, at least, not for the foreseeable future. Please plan cash flow accordingly.

2.  A Central Withholding Agreement (CWA) is still the best way of avoiding or reducing the mandatory 30% withholding required from all engagement fees for non-U.S. artists. To be eligible for a CWA, among other requirements, an artist must have filed a U.S. tax return for each prior year in which they have ever performed in the U.S.– even where no tax was owned. If an artist has not filed past U.S. tax returns, he or she will be required to file them as a prerequisite to obtaining a CWA. Unfortunately, we are seeing a sharp increase in the instances where filing such past tax returns is triggering an IRS audit in which they are requesting documents and records from the artist’s world-wide income.

    • In this one particular area, the IRS has displayed a remarkable degree of efficiency in identifying artists who have simultaneously made the least amount of money and kept the least amount of records to prove it.

3.  Obtaining Social Security Numbers (SSNs) and Individual Tax Payer Identification Numbers (ITINs) continue to be a challenge. While SSSs are not any easier for an artist to obtain, they have not become harder. ITINs, on the other hand, have become increasingly difficult, if not impossible, to get. Despite both staffing and budget cutbacks, the IRS has been requested to scrutinize ITIN requests more closely—particularly with regard to proof of identity. For most non-US residents, the most obvious and best proof of identity is a copy of their passport. However, the IRS lacks the resources and training to evaluate how to tell legitimate passports from forged ones. As a result, the IRS is now only accepting copies of passports that have been certified by the actual agency that issued the passport. However, even when this is provided, we are seeing the IRS send notices requesting that the actual, physical passport be sent to them instead. DO NOT DO THIS! You will never see that passport again!

    • There IS one option for some Europeans:  There are IRS offices located in the U.S. Consulates in Paris and London. One can go to these offices and request an ITIN in person (with an original passport, which the IRS will review and return on the spot.)  HOWEVER – one can obtain an ITIN only if one has an “immediate tax need”, such as filing a return. So, if requesting an ITIN in the Paris or London Consulates, one must also bring a completed tax return in hand, ready to file.

4.  We are seeing a large number of U.S. presenters–especially those based at colleges and universities—insisting that non-U.S. artists are legally required to have either a SSN or ITIN in order to perform or get paid in the U.S. Please be advised: There is no such law! While such numbers may make book keeping and accounting easier for the presenter, there is no law that requires an artist to have either one. Not only are SSNs and ITINs not proof of work authorization, but as we addressed above, many artists will be unable to get them in advance—if ever.

5.  Canada requires 15% withholding for gross engagement fees of non-Canadian performers performing there (similar to the 30% withholding requirement in the U,S.) Canada Revenue allows performers to file a waiver/reduction request to reduce/waive the withholding (an R-105 request). On their website, Canada Revenue indicates that the deadline for filing such a request is 30 days prior to the first payment due.  However, it’s taking them MUCH longer to process the requests. So, we are recommending that you file your request with them AT LEAST 60 days prior, or earlier, if possible.

General Travel Stercus 

1.  There is nothing new to report with regard to the ban on bringing musical instruments into the U.S. that contain ivory or other protected materials. United States Customs and Border Patrol isn’t strictly enforcing this with any degree of regularity. However, if any orchestras are touring and don’t want to take the risk, we are recommending that they contact Heather Noonan (hnoonan@americanorchestras.org) at the League of American Orchestras (http://americanorchestras.org) who is among the leading and most effective legislative arts advocates in the U.S. and is happy to talk to them about the “Instrument Passport” process.

    • The League and others are continuing to lobby for specific amendments, including exemptions to the rules for “personal effects” (which would include carry-on musical instruments).

2.  There has been some recent concern about Amtrak, the U.S.’s ersatz rail service, implementing a new policy requiring additional seats to be purchased for oversize musical instruments which cannot fit into overhead compartments. To date, this policy has been posted, but not enforced. We are recommending that artists and ensembles that intend to use Amtrak to travel to engagements within the U.S. check with an Amtrak representative in advance of the tour…and then be prepared for whatever they are told in advance to then be either incorrect or disputed by Amtrak at the actual time of travel.

Other Stercus

1.  When negotiating fees for U.S. engagements, please remember to specify the currency in which the artist is to be paid, including exactly how and when the exchange rate is to be calculated. We are seeing an increased number of misunderstandings over this point.

    • At the same time, use this as an opportunity to clarify any other costs or deductions (such as taxes, visas costs, hotel, travel, etc.) which either are or are not to be included as part of the engagement fee.

2.  Too many people are still relying on general, vague, boilerplate, or unspecific contractual language to take the place of actual negotiation. Do not rely on the misguided belief that there are standard legal terms and procedures that magically govern engagements and bookings when words fail. If you want something, or don’t want something, say something—or, preferably, write it down.

3.  When dealing with performances of new works or contemporary music, bear in mind that licensing laws differ. What’s in the public domain in Europe may not be in the United States. Even a re-arrangement or re-orchestration may not be permissible in certain countries.

__________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook legal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.com

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

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Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Taxes, Touring, Visas | Comments Closed

Paying By the Numbers

Thursday, October 15th, 2015

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

A presenter is refusing to pay one of our artists who has an O-1 visa, but does not have a Social Security Number. Does a foreign artist who is performing in the U.S. under an O-1 also have to get a Social Security number in order to get paid?

Many presenters and venues—particularly those affiliated with university or other academic institutions—have an affinity for imposing arbitrary policies and procedures and insisting that they are legal requirements. To be fair, many of those presenters and venues are merely passing along edicts that have been dictated to them by other departments and offices within their labyrinthine institutions who are more familiar with hiring snow plow services than with engaging non-U.S. artists.

Non-U.S. artists are not required to obtain anything other than an appropriate artist visa (usually, but not always, either an O or a P visa) in order to be authorized to perform legally in the U.S. Whilst it is not uncommon for presenters and venues to insist that a non-U.S. artist have either a Social Security Number (“SSN”) or the SSN’s evil twin, an Individual Taxpayer Identification Number (“ITIN”), as an additional condition for an artist to be paid, that is not a legal requirement. More often than not, it is merely a requirement of the presenter or venue’s finance department or booking software which cannot physically write a check without having either a SSN or ITIN. Provided the artist has an appropriate artist visa, he or she is legally permitted to be paid and, unless there is an express contractual provision to the contrary, the presenter is legally required to honor an engagement contract and to pay the artist for services performed.

SSNs and ITINs have absolutely nothing to do with work authorization or immigration law. Rather, they are creatures affiliated with U.S. tax obligations and tax returns. An artist will need either an SSN or an ITIN to file a U.S. tax return, which artists are required to do—especially if they want a refund of any engagement fees that might have been subject to 30% withholding. However, if the artist elects not to file a U.S. return and just let the IRS keep their money, that’s entirely at the discretion of the artist. The failure or an artist to have a SSN or ITIN cannot be used as an excuse by a presenter or venue to pay the artist or otherwise honor a valid engagement contract.

_________________________________________________________________

For additional information and resources on this and other legal, project management, and GG_logo_for-facebookbusiness issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.com

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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Posted in Agents, Artist Management, Contracts, Law and Disorder: Performing Arts Division, Presenters, Taxes, Touring, Visas | Comments Closed

The Recipe For Confusion

Thursday, September 11th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

We obtained a three year O-1 visa for one of our artists. We are the artist’s agent and served as his petitioner. A large venue wants to book the artist, but they are insisting that, according to their finance department, they cannot pay us as the artist’s agent and that they must pay the artist directly as an employee of the venue. While we are willing to agree to this, the venue is also insisting that, because they must pay the artist directly, we either must file an amended petition specifically naming the venue as an employer or file a separate petition just for the venue.

Whether its dealing with visas, taxes, or employment issues, we here at GG Arts Law often find ourselves in loggerheads with CFOs, finance departments, HR directors, and others, especially at large venues and organizations, who seem to use the same recipe when developing policies and directives: Take one very broad workshop which they attended several years ago and is now outdated, add an opinion from a board or volunteer attorney who doesn’t actually specialize in the topic at issue, stir in some research done by an intern, mix well with incorrect anecdotes from peers and colleagues, add a dash of ego, bake well, and insist this is the law.

In your particular situation, the venue appears to be confusing several key concepts: (1) the nature of itinerary based visas for artists; (2) the ability to add additional engagements when an artist is on an itinerary based visa; and (3) the relationship (or lack thereof) between employment law and immigration law.

Itinerary Based Visas:

Most immigration scenarios contemplate a single employer submitting a petition on behalf of a non-US individual whom they wish to hire. In those instances, the employer submits an I-129 petition to USCIS and, once approved, the name of the employer will appear on the I-797 approval notice authorizing the individual to work for the employer. If the individual wants to work for more than one employer, then each employer needs to submit its own I-129 petition.

However, there is an exception for artists: The applicable immigration regulations recognize that O-1 artists of “extraordinary ability” typically come to the US to perform “on tour” and, thus, will have multiple employers who hire them to perform. In such cases, a single petition may be filed with USCIS covering all of the artist’s engagements with multiple employers in the US. These are known as “itinerary-based” O-1 visas because, as opposed to covering a single performance, the petition includes an “itinerary” of performances and engagements with multiple employers.

So, for example, let’s say that an opera singer is hired to perform at the Metropolitan Opera, San Francisco Opera, and Seattle Opera. While each venue could certainly file its own, separate I-129 petition, the Metropolitan Opera could be designated as the singers “agent” and submit a single petition on which it also lists the singer’s engagements at San Francisco Opera and Seattle Opera. As the petitioner, only the Metropolitan Opera’s name would appear on the I-797 approval notice. However, because all three venues were listed on the singer’s “itinerary” the singer would be authorized to perform for all three. Alternatively, if the singer had an actual US agent or manager, the singer’s agent could serve as the petitioner and serve as the petitioner and submit a single I-129 petition to cover all three engagements. Again, as the petitioner, only the agent’s name would appear on the I-797 approval notice. However, because all three venues were listed on the singer’s “itinerary”, the artist would be authorized to perform for all three.

Adding Additional Engagements:

Continuing with this example, let’s suppose that after the singer arrived in the US, the singer was contacted by Washington Opera and asked to replace another singer who fell into the orchestra pit and can no longer perform the role. This last minute engagement would take place between the singer’s engagement with San Francisco Opera and Seattle Opera. Does Washington Opera have to file its own separate I-129 petition? No. Does the petitioner of the singer’s original I-129 petition have to file an amended petition “adding” this new engagement? No. Provided that additional engagements occur within an artist’s approved or existing O-1 classification period, and provided that the engagements or services are consistent with the artist’s O-1 qualifications (ie: performing, teaching, master classes, residencies, etc.), the artist is legally permitted to add and perform such additional engagements without the necessity of anyone filing an amended petition or otherwise notifying USCIS of the additional employers. The triggering factor is whether or not an artist was on an itinerary based visa with multiple employers to begin with. (By contrast, if an artist wants to add an engagement or performance that would take place after the period of the artist’s approved or existing O-1 classification period, that would require a new or amended O-1 petition to be filed.)

The Immigration Implications of the Employment Relationship:

Many people see the word “employer” used throughout US Immigration Law and its applicable regulations and presume that it has the same connotations as when used in the context of a traditional “employer-employee” relationship. It does not—particularly in the context of O and P artist visas. US Immigration Law uses the term “employer”, at least in the context of O and P artist visas, to refer to anyone who hires or engages the services of an artist in any capacity regardless of how the employment relationship is structured. A petitioner is neither presumed nor required to be the artist’s actual employer under any circumstances. Moreover, it doesn’t matter who pays whom or whether the artist is paid as an independent contractor or an employee, or even whether the artist is paid at all. This is because US immigration law does not use payment, or lack thereof, as a determinative factor in whether or not an artist requires an O or P visa. If an artist performs in front of an audience or otherwise provides professional artistic services in the US, such artist is required to have either an O or P visa regardless of whether or not the artist is paid, tickets are sold, or the artist receives any compensation from any source directly or indirectly. Thus, while the petitioner of an itinerary based I-129 O-1 petition can also serve in the dual role of one the artist’s employers, there is no requirement under any aspect of applicable immigration law that the petitioner actually serve as one of the artist’s employers, much less that all employment and payments go through the petitioner, or anyone else for that matter.

In short, so long as the artist is on a valid, itinerary-based O-1 visa, anyone can hire and pay the artist, directly or indirectly. Who pays the artist and how are all contractual issues to be negotiated between the parties and not immigration issues.

__________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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Posted in Agents, Artist Management, Arts Management, Employees, Law and Disorder: Performing Arts Division, Presenters, Taxes, Touring, Venues, Visas | Comments Closed

The Lost Art of Negotiation

Thursday, June 12th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

A longtime friend who is also a very successful artist who I greatly respect, asked me to do a project with him. He sent me a contract, but it doesn’t cover things like when and how I get paid. I want to mark up the contract and suggest some language, but I also don’t want to offend him and have him think I am being too difficult to work with and ungrateful for this opportunity. Is there some specific language I can put in the contract that he won’t find offensive, but will still protect me?   

I had a client of mine call me today about a contract she had sent to a promoter who then struck out a specific term that my client needed and sent the contract back to her. Frustrated and desperate to make the deal happen, she wanted me to suggest another way to phrase the term in such a way that the promoter would agree to it. Both you and my client are asking very legitimate questions, but the answers have little to do with contracts and everything to do with business and negotiation skills.

Contracts exist to memorialize an agreement. You can’t memorialize something that doesn’t exist yet. That’s like trying to take a photograph of a place you’ve never been. Before a contract can be properly drafted, much less signed, the parties have to discuss all of the key terms. While you can certainly use a contract to begin the discussion, you can’t avoid the discussion by simply crossing out terms you don’t like and inserting the ones you do. More importantly, there are no magic words, standard terms, or compelling phrases that will take the place of the need to discuss and negotiate.

Too many people in our industry try to use a contract to avoid negotiation—most often for the very reasons you mention: they are too scared of offending the other party, of not getting the terms they need, or of losing a deal or opportunity they really want. However, if you approach a negotiation as a game of deception in which the goal is to use illusive or even deceptively simplistic language or aggressive tactics to cajole the other party into agreeing to something unreasonable or something to your advantage which they would not otherwise agree to (ie: Lawyering 101), then you most certainly should expect the other side to be offended and deserve to lose the deal. On the other hand, if the other party is offended by a legitimate expression of your concerns, sincere questions about a specific term, or proposals that would clarify something you find confusing, then its probably either a deal you don’t want in the first place or a party you don’t want to work with. Just as importantly, if someone doesn’t agree with a term you want, they are not going to agree no matter how you phrase it. Phrasing the same thing in a different way isn’t going to help either. Even if you manage to word it in such a way that they can’t tell what they are agreeing to (what a lot of people refer to as “legalese”), then you’ll have to sue them to enforce it. Instead, you’ll either need to negotiate a compromise or evaluate whether or not the deal is equally advantageous to you without that term.

I have been to many purported lectures on negotiation at arts conferences, only to find that the lecture was really just about how to get presenters to book artists. That’s important, of course, but the real art of negotiation involves far more than discussing date, time and fee. Whether it is a commission, a booking, a production, or a recording, you must discuss and negotiate not just the artistic and logistical elements, but all of those nasty and boring business elements as well—such as liability, insurance, rights, licenses, approvals, exclusivity, taxes, visas, etc. If you are unfamiliar with the necessary business elements of a deal, the time to learn them is before you negotiate, not during the process.

A negotiation does not mean you will get what you want. Rather, a negotiation is a process that allows you to evaluate whether or not you will get what you need. Some opportunities are just that—opportunities—and a good opportunity may require you to accept some risk. But without taking the time to talk and discuss, you won’t have the information you need to access that risk properly. In other words, the negotiation process will save you from disappointment and frustration later on.

As for an answer to your specific question, I would say: Protect you from what? If your “longtime friend who is also a very successful artist who [you] greatly respect” breaches your contract, are you prepared to sue him? I thought not. I suggest you call your friend and ask him when and how you get paid. Don’t ever be scared to ask a legitimate question—especially when dealing with a friend. In the bi-polar cocktail of simultaneous love and resentment we call the arts world, doing business with friends demands an even higher degree of mindful discussion than doing business with strangers.

_________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

 

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Posted in Acts of God, Agents, Artist Management, Arts Management, Contracts, Copyrights, Insurance, Law and Disorder: Performing Arts Division, Liability, Licensing, Music Rights, Presenters, Publishing, Recordings, Taxes, Touring, Venues, Visas | Comments Closed

Does The Government Shut Down Also Shut Our Doors?

Thursday, October 3rd, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

I have several visa petitions pending as well as applications for Central Withholding Agreements. What impact will the government shutdown have? Do I need to be worried?

That depends on whether or not the lack of an operational government worries you. Granted, it hasn’t been that particularly operational for quite some time. Whenever my computer becomes non-functional, I find that shutting it down and turning it back on again sometimes helps. Perhaps this will have a similar effect. In the meantime, short of accepting the fact that it may be time to consider putting HM The Queen on our stamps and currency, here’s what we’ve got to work with:

Obtaining a visa involves three government agencies: (1) United States Citizenship and Immigration Services (USCIS), which reviews and (theoretically) approves visa petitions; (2) The United States Department of State which operates the U.S Embassies and Consulates where artists take their petition approvals, are interviewed, and apply for visas; and (3) United States Customs and Border Patrol which monitors all ports of entry and (more often than not) admits artists into the country. Applications for Central Withholding Agreements, on the other hand, are processed by the Internal Revenue Services (IRS).

1.      USCIS:

Because USCIS charges fees for visa petitions, it is not entirely dependent on

Congressional funding. As a result, at least for the immediate future, USCIS will remain open and will continue reviewing visa petitions with the customary unpredictability and quirky efficiency we have all learned to expect. However, visa petition fees do not cover all of USCIS’s operational costs. As a result, if the shutdown continues, you can expect to see increasing delays and slower processing times.

In the category of “every cloud has a silver lining”, a large number of petitions for non-arts related employment visa cannot be processed because they involve other federal agencies, such as the Department of Labor, which are completely closed. As a result, at least in the immediate future, you may actually see speedier processing times for O and P petitions as USCIS examiners find themselves with less petitions to review.

2.      U.S. Department of State (U.S. Consulates and Embassies):

Like visa petitions, visa applications and interviews at U.S. Consulates and Embassies, are “fee-based” and are not entirely dependent on Congressional funding. So the good news, such as it is, is that most U.S. Consulates and Embassies will continue interviewing applicants and processing visas…so long as the buildings remain open. That’s right, while consular services may continue, the longer the shutdown continues, the more likely that that staff support, security and other services will be cut off and the buildings and embassy compounds in which the consulates are located may be forced to close or restrict access.

Another concern is that, even where USCIS has approved a visa petition, citizens from certain countries (and you know who you are) require additional security clearances and background checks before the consulate can issue the visa. As other U.S. agencies are required for such clearances and checks, if these agencies close or shutdown, the visa applications dependent on these clearances cannot be processed.

As each U.S. Consulate maintains its own website, the best advice is to continually visit the website of whichever U.S. consulate you need to determine whether or not that consulate is open and functional. You can link to all consulate from the Department of State’s website: www.state.gov

3.      U.S. Customs and Border Patrol:

As their functions constitute law enforcement, CBP officials are considered “essential personnel.” As result, all borders and ports of entry will remain open and fully operational and there should be no immediate impact on the ability of visa holder to enter the U.S. However, as the shutdown progresses, staffing could may become more limited, resulting in longer lines and grumpier than usual CBP inspectors—especially given that “essential personnel” have the honor of being required to work without the requirement of being paid. Accordingly, you should plan connecting flights accordingly.

One additional note of concern is that the CBP website will not be maintained during the lapse in appropriations. As you may know, since May 1, CBP has no longer been issuing physical I-94 cards to indicate when an individual entered the U.S. and the length of their approved stay. Instead, that information is being entered electronically and, should someone need to verify that they are legally present in the U.S., they can use the CBP website to print out a copy of their “digital” I-94 card. Because approximately 6,000 CBP positions, primarily held by technicians and support staff, are impacted by the shutdown, the website will not be available. You should also expect delays in updating the system once it comes back on-line.

4.      Internal Revenue Service:

It should come as no surprise that the CWA program is considered “non-essential” and, as a result, the program was shut down along with the rest of the government. All processing of applications has stopped and will not resume until the government decides to re-open. At which time, you can expect a delays as the IRS agents attempt to catch up on the backlog. In the interim, engagement fees not covered by a CWA or other applicable withholding exemption, will be subject to 30% withholding.

Obviously, this is an ever changing situation and may have changed already by the time you read this. What has not changed, and is unlikely to change, is that when planning U.S. tours and performances of non-U.S. artists, you should always plan as far in advance as possible and allow as much time as possible. While we will continue to provide updates as they become available, you should also regularly monitor www.artistsfromabroad.org for the latest news.

__________________________________________________________________

For additional information and resources on this and other legal and business issues for the performing arts, visit www.gartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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Posted in Artist Management, Arts Management, Central Withholding Agreements, Law and Disorder: Performing Arts Division, Taxes, Touring, Visas | Comments Closed

A Room With A View…and a 1099

Wednesday, July 24th, 2013

By Robyn Guilliams Dear Law and Disorder, I have been in artist management for a long time, thought I had seen it all, but something just came up for one of my artists that has me completely stumped.  My client was sent a 1099 for a hotel stay that the presenter provided for an engagement.   Most presenters that I work with pay for the hotels, but never once has the value of that hotel been included on the 1099 that the artist was sent.  This particular place is a big resort, they too are the presenter.  They often trade rooms for fees (it’s a very exclusive resort!), or they give small fees plus the accommodations (which includes meals), usually for two nights as a perk to the artist. It gets tricky for the artist, because they don’t pay for the hotel, so they have no expense to write off for that income. So that may mean they end up paying tax on that amount, thereby losing money doing this performance.  That’s where this goes wrong for the artist, in my opinion.  Artists obviously do this gig because of the resort.  But, this has left a bad taste.  What’s up with issuing the 1099?  They say it is an IRS law that says hotel costs are income for the artist.  By the way, they don’t tell you this up front…Searching for the Truth Dear Searching for the Truth: The answer to your question depends on the specific facts of the situation.  (A lawyer’s favorite answer to every question is – “It depends”!) Generally, if a presenter provides accommodations to an artist as part of the artist’s compensation, the value of the accommodations is NOT considered taxable income to the artist, if the accommodations are reasonable and necessary.  For instance, if an artist is travelling from California to New York to play one show, the presenter providing the artist with two nights of hotel accommodations is reasonable and necessary.  The value of the hotel accommodations in this instance would not be considered taxable income to the artist, and need not be included on the 1099. On the other hand, if a pianist travels away from home to play a concert and the presenter provides hotel and airfare for the pianist, her husband, her sister, her sister’s next-door neighbor, and the next-door neighbor’s pet monkey, this is not reasonable and necessary.  The value of the airfares and accommodations for everyone except the pianist would be considered taxable income and SHOULD be reported to the artist on a 1099. Unfortunately for your artist, there are a few comments in your letter that indicate that the accommodations at the resort exceeded the “reasonable and necessary” standard.  You state that the artists at this resort often accept accommodations in lieu of fees, or accept smaller fees plus accommodations.  Why would an artist accept no fee, or a substantially smaller fee, if the artist wasn’t receiving something of value (in addition to the hotel room) in return?  Plus, you mention that artists “do this gig because of the resort”… and the presenter provides “two nights as a perk to the artist”.  Again, the artist is receiving something of value besides the usual hotel accommodations.  If an artist is receiving a significant personal benefit from the accommodations besides a place to lay his head after the show (such as the opportunity to enjoy resort amenities or an extra night of accommodations), then the value of the accommodations constitutes taxable income and must be reported. You say that it’s tricky for the artist, because he has no expense to write off his income.  But wouldn’t this be the case if he was receiving his usual fee plus a regular, non-resort, hotel room?  I’d suggest that in the future, unless your artist understands the taxable “value” of receiving resort accommodations, including the included room service and use of the infinity pool, have him stay at the Motel 6 down the street. _________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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Posted in Agents, Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Taxes, Touring, Venues | Comments Closed

New I-94 Process for Artists Touring the United States

Wednesday, May 22nd, 2013

By Brian Taylor Goldstein, Esq. Dear Law and Disorder: I heard that US Immigration will no longer be giving foreign artists the little white card they used to get when an artist entered the US. The cards were stamped with the artist’s visa category and the date they had to leave. It was my understanding that we needed to make copies of those cards if we needed to extend an artist’s visa. Are we supposed to use something else instead? Is there a new process? Yes, you heard correctly. The little white card, called a Form I-94, was an artist’s official arrival/departure record. Up until recently, every foreign artist as well as all other foreign travelers entering the U.S. (except, occasionally, Canadians, depending on when and where they entered) was given a Form I-94 to fill out (most often while waiting in an interminably long line at an airport international arrivals hall), the bottom half of which was stamped with their status and departure date and returned to them by a US Customs and Border Patrol Officer (aka the border troll.) This form was also issued to those who adjusted their status while in the U.S. (ie: changed from F to O), or who extended their visas. The I-94 was used to confirm the artist’s individual’s status or visa category (O, P, F, B1/B2, etc.) and the departure date by which they must leave the U.S. When the artist left, they surrendered the I-94 either to the commercial airline carrier or to CBP directly. The I-94 information and the date of departure was then entered into a database to verify that the artist did not overstay the required departure date. As of April 30, 2013, this process became electronically automated. CBP will no longer require artists to fill out a paper Form I-94 upon arrival to the U.S. by air or sea and will no longer issue paper I-94 forms in return. Instead, CBP will gather the arrival/departure information automatically from the foreign artist’s electronic travel records and, upon entry of the artist into the U.S., will enter their status and departure date electronically. (Because advance information is only transmitted for air and sea travelers, CBP will continue to issue a paper form I-94 “at land border ports of entry”—which is government-speak for Canada and Mexico.) Similarly, when the artist leaves the US, the date of their departure will be electronically gathered, as well. Under the new process, the CBP officer will stamp the passport of each arriving artist. The admission stamp will show the date of admission, class of admission, and the departure date by which the traveler must leave. Artists wanting a hard copy or other evidence of their valid admission and immigration status will need to go to a special website (www.cbp.gov/I94) where, using their passport numbers and names, they can access and print as many physical copies of their I-94 as they want. Officially, there is no legal reason for an artist to have a hard copy of the I-94. Officially, the electronic record and the passport stamp will serve as evidence of their valid admission and immigration status. Nevertheless, we are strongly recommending that all artists, or their managers/agents or employers, go to the website and print out a hard copy of the I-94. Why? Simple—we don’t trust CBP not to make mistakes! Plus, while CBP may no longer require a physical I-94, other government agencies still do. Despite what is stamped in an artist’s passport, an artist’s official arrival/departure record will remain the electronic I-94. If a CBP officer makes an error and the required departure date written on the passport does not correspond with the official departure date electronically entered on the I-94, the I-94 will govern. In other words, regardless of what is written on the passport, the artist MUST leave the US by the date stamped on the I-94 despite what was approved by USCIS or written on their visa. Printing out the I-94 will be the only way to verify that the I-94 reflects the correct visa category and the correct period of admission. Furthermore, having a hard copy of the I-94 will also continue to be required by employers and schools who are required by other government agencies to verify immigration status. A hard copy of the I-94 will also facilitate the process of obtaining drivers licenses and social security numbers. An equally important reason for a paper copy of the I-94 is that it would function as a backup document in the event that CBP officers cannot access the electronic record of admission due to a systems failure at the time that an artist seeks re-admission to the US after a short visit to either Canada or Mexico. A hard copy of the I-94 will also continue to be required by USCIS when an artist is currently in the US and files a visa petition to extend their visa. In such cases, the petition must include a copy of the I-94 to show that the artist was validly admitted and is currently “in-status.” CBP has issued a fact sheet that includes frequently asked questions regarding the impact of automation, visa revalidation, passenger processing times, and more. You can access that at: http://www.cbp.gov CBP contends that this automation will streamline the entry process for travelers, facilitate security, and reduce federal costs by saving the agency an estimated $15.5 million a year. That remains to be seen. As CBP implements the I-94 automation process, processing errors and challenges relating to the automated admissions process and accessibility of electronic records are already arising. _________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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Posted in Artist Management, Arts Management, Employees, Law and Disorder: Performing Arts Division, Taxes, Touring, Visas | Comments Closed

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