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:
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!
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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
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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.
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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!
