The current slow down at the California Service Centre notwithstanding, the real bad news is that many—not all, but many–U.S. Consulates continue to experience significant backlogs. Artists approved for visas are finding that it can take weeks or months to have their visa stamps issued by a U.S. Consulate. Just within the last few weeks, an artist approved for an O-1 visa found she could not get an appointment for a visa stamp at the Paris Consulate until January 2023!
Whilst some consulates have expanded their interview waiver programme, many continue to be wildly inconsistent with regard to how this is implemented, including whether to grant interview waivers at all. For example, an artist was recently informed by the U.S. Consulate in London that, though he qualified for an interview waiver, it could take “several weeks or months” before he would be able to submit the application and get his visa stamp. Others have found it has taken 3 – 4 weeks for Consulates to return passports with visa stamps. Consulates also continue to be wildly inconsistent in how they grant requests for emergency appointments, with arts visas, of course, sedimenting to the bottom of the bin.
Whilst it is still “officially” possible for anyone, regardless of citizenship, to apply for a visa at any U.S. Consulate in the world where one can get an appointment, some consulates—purportedly to manage workload—are only accepting applications from citizens or residents of the country in which the Consulate is located.
In response to manifold complaints and queries from all sectors, the U.S. Department of State has issued several urgently indeterminate statements, a synopsis of which essentially being as follows:
“Yes, we know there’s a problem. We are very sorry. We are doing our best. We have a lot on our plates rights now. We are currently implementing many solutions which, due to national security, we cannot divulge other than to re-assure you in the vaguest possible terms that these new solutions will be more effective than our previous solutions which in hindsight should have been seen as imprudent in the expectation of their efficacy. Will it help if we continue to blame COVID? We care about you. Really. Every effort is being made towards prioritizing a scheme pursuant to which visa applications will be prioritized based upon a system of discretionary prioritization. The wizard says go away!”
Devastatingly, we are increasingly encountering engagements having to be cancelled or rescheduled where visa petitions were approved, but artists could not get their visas in time to travel. As such, please take this into consideration when planning your timelines and budgets. If you are planning anything for fall 2022 which depends upon a non-US artist, you would be wise to (1) check the current application procedures and timelines for the consulate where the artist will be applying for their visa stamp and (2) seriously consider premium processing at the outset so as to get the petition approved quickly and allow for as much time as possible for the visa stamp application process.
USCIS Has Issued Updated Forms
On May 31, 2022, USCIS released new editions of Form I-129 (used to file for O and P visa Petitions) and Form I-907 (for Premium Processing). Both of these forms are identical in all respects to the prior forms, except with new dates at the bottom. Why did they bother, you say? What was the point? No point. They’re just a bunch of crazy kids.
Legal Issue of the Month:
Contract Entirety Clauses
Look out for what are sometimes called “superseding agreement” or “entirety” clauses. They appear in almost all contracts, usually buried amongst the “legalese” that no one wants to read. They usually say something like this: “This Agreement constitutes the entire Agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement.” It means that emails and discussions are not binding once the contract becomes binding.
So, if you had a series of emails with a presenter confirming that your artist must have a dressing room free of feather pillows, but that never made it into the final engagement contract, and the contract contains an “entirety clause”, then she’s going to need some extra-strength Zyrtec. I encountered this situation in the context of travel arrangements, but the issue is the same–and, no, sending me the chain of emails and texts did not help two days before the date!
Dear Law and Disorder Actual Questions We Get Asked and The Answers People Don’t Want
“BOARD TERM LIMITS”
Dear Law and Disorder:
We are a small non-profit that runs a performing arts center. In up-dating our by-laws, its been recommended that we establish term limits for our directors and officers, as well as a formal nominating committee. Do we really need such formalities? We’re very small and don’t have any other committees. Can’t the board itself select its own members and officers? And it seems a mistake to force directors to leave when they are willing to continue to serve on our board. What do you recommend to your clients?
While I am a strong advocate of fixed terms, I never recommend term limits for board members. Why? Because among the most challenging aspects of running a successful non-profit is finding and keeping healthy board members who through wealth, work, or wisdom (as opposed to whining, wasting staff time, or wrongheadedness) contribute to the success and productivity of the organization. Once you are lucky enough to find such pearls, the last thing you want to do is force them to leave! However, at the same time, you need to have a mechanism through which malignant board members can be removed. Such members, if left to metastasize, can quickly chase all the healthy ones away, burn out the staff, and poison the entire operation. Fixed terms where board members can then be re-nominated and re-elected provides you with such flexibility.
On the other hand, term limits for officers can be more appropriate. Why? Because with no term limits, even a beloved president or board chair can quickly become a feared dictator that no one wants to cross, or, just as worse, a benevolent, but ineffective leader who spurns all attempts at needed growth or change. At the end of the president’s term, they can still serve on the board, but no longer gets to wield the mace of supreme authority. Also, in my experience, I have found that those you most want to serve as board presidents or chairs will also be those who do not want to serve more than a few years year whereas those you want to avoid will be those looking to establish a hereditary fiefdom.
Deep Thoughts
“The nicest thing about not planning is that failure comes as a complete surprise and is not preceded by a period of worry and depression.”
John Harvey Jones.”
Send Us Your Questions
Let us know what you’d like to hear more about.
Send us an email, post on Facebook, mail us a letter, dispatch a messenger, raise a smoke signal, reach out telepathically, or use whatever method works for you.
GG Arts Law provides a comprehensive range of legal services and strategic support for the performing arts, including: Artist Visas, Taxes, and Touring; Rights & Licensing; Negotiations & Representation; Contracts; Business & Non-Profit Organization & Management; Project Management; and Strategic Consulting & Planning.
OFFICIAL LEGALESE:
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 threatening email, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about or one size fits all!
The Screaming Demon Pumpkin and his festering goblins of anal carbuncles JUST announced TODAY that it was raising the premium processing fee from $1440 to $2500 effective this Monday, October 19, 2020.
Any
petitions postmarked after October 19, 2020 will be returned if they do not
have the higher fee. Whilst I expect this to be challenged in court, we are
stuck with it until a court issues an injunction.
An
injunction still remains in place on the new I-129 fees and forms for O and P
petitions.
National Interest Waiver Exceptions to the Covid Travel Ban
Many of you continue to as about requesting a National
Interest Waiver NIW) so that artists can fly to the U.S. from certain countries
without first having to quarantine in a third country (such as Canada) before
entering. While that possibility still exists, please be aware that everything
is in significant flux these days. As Covid cases to continue to rise in both
the U.S. and around the world, the National Interest Waiver may be discontinued
at ANY time. This means that, for example, if an artist applies for a waiver
and receives one for to travel to the U.S. in November, the waiver could be
revoked between now and then. Worse, if the artist travels to Europe and the waiver
is revoked after arrival, and the artist actually resides in the U.S. and is
not either a green card holder or is not married to a U.S. citizen, they will
be trapped outside of the U.S.
For as long as the option remains, NIW requests can be
made either through a U.S. Consulate or at a United States Customs and Border
Patrol (USCBP) office at the U.S. airport where the artist intends to arrive. Due
to the Covid travel ban, many U.S. Consulates in Europe are either not taking
appointments or only scheduling appointments for 6 months in the future. If an
artist has been approved for a visa, but needs to get a visa stamp, they will
need to make an appointment at U.S. Consulate and then request an emergency
appointment and submit a NIW request. If an artist already has a valid visa,
then they can request a NIW through the USCBP office at whatever U.S. airport where
they intend to arrive.
1. Apply for a National Interest Waiver at a U.S. Consulate
Every consulate has its own rules and procedures for
how to do this, but, generally:
>>>Contact the U.S. Consulate in whichever
country you are physically located no
earlier than 30 days prior to the date of travel
>>>Explain that you have an immediate need to
travel to the U.S. within 30 days and
cannot quarantine in a third country
>>>Provide a letter from your venue, presenter,
employer, etc. explaining why it is critical
that you be physically present in the U.S, that your work or performance is essential to them, and that it
cannot be done remotely or via “streaming”
outside of the U.S.
>>>Agree to quarantine for 14 days after your
arrival in the U.S.
You will then need remain while this is pending. If
the waiver is granted, you will be sent a letter to present to an immigration
officer when entering the U.S.
You will need to check the website of the specific
U.S. Consulate where you intend to apply for specific instructions.
2. Apply for a National Interest Waiver from USCBP
Contact the USCBP office at whatever U.S. airport where they intend to arrive. This needs to be done before travel and the requirements are generally, more or less, somewhat, similar as those listed above for consulates. However, of course, each airport has a different procedure and there is no oversight, so you will need to visa the USCBP website for the specific airport where you intend to apply for specific instructions.
GG Arts Law provides a comprehensive range of legal services and strategic support for the performing arts, including: Artist Visas, Taxes, and Touring; Rights & Licensing; Negotiations & Representation; Contracts; Business & Non-Profit Organization & Management; Project Management; and Strategic Consulting & Planning.
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 or threatening email to someone, filing a lawsuit, or basically doing
anything that may in any way rely upon an assumption that we know what we are
talking about.
GOOD NEWS: USCIS has agreed to call off its planned furlough of 13,500 employees which had been scheduled for this weekend.
BAD NEWS: In exchange for this, the U.S. House of Representatives has unanimously agreed to let USCIS raise the premium processing fee from $1440 to $2500 for O and P petitions and cancel the outside contractors who help process and intake petitions, thereby slowing down standard processing.
There has, as yet, been no announcement of when
the higher premium processing fee will go into effect. As with the other recent
fee increases, USCIS will be required to go through a regulatory processes
whereby they will ask for public comment, ignore that, and then raise the fee
anyway.
So, just in case you’re not following along:
USCIS got into this financial mess was because its policies resulted in fewer people filing petitions and, therefore, less revenue.
It stamped its foot and threated furloughs and slowdowns unless it got $1.3 billion dollars by August 30.
They knew that they were never likely to get $1.3 billion from an administration that would prefer them just to shut down completely.
So, USCIS has agreed to cancel the furloughs in exchange for being allowed to slow everything down anyway with the expectation that this will force people to pay for premium processing, and then raise the premium processing fee so that fewer people can afford it, thereby resulting in even fewer people filing petitions.
On a related note, historians have recently unearthed a photo of the skeletal remains of Ken Cuccinelli, the Acting (“illegally”) Director of U.S. Citizenship and Immigration Services taken just prior to when Trump poured rabid squirrel blood into his tomb.
GG Arts Law provides a comprehensive range of legal services and strategic support for the performing arts, including: Artist Visas, Taxes, and Touring; Rights & Licensing; Negotiations & Representation; Contracts; Business & Non-Profit Organization & Management; Project Management; and Strategic Consulting & Planning.
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 or threatening email to someone, filing a lawsuit, or basically doing
anything that may in any way rely upon an assumption that we know what we are
talking about.
I. Consulates Are Open, But Now Refusing To Issue Visas To Applicants Who Have Been In Certain Countries
For artists who have been approved for visas, but have been waiting months to apply for them at a U.S. Consulate, many U.S. Consulates have re-opened and are beginning to issue visas. But not so fast…there continues to be a travel ban on foreign nationals entering the U.S. who have been in any of the following countries for 14 days or longer prior to their intended date of entry:
China, Iran, The European Schengen Area (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Monaco, San Marino, Vatican City), the United Kingdom (England, Scotland, Wales, Northern Ireland), the Republic of Ireland, Brazil, and all of Middle Earth (except Mordor, because Trump is pals with Sauron!)
Please Note: the travel ban applies to anyone who has been physically present in this countries regardless of citizenship.
U.S. Citizens and green card holders, certain family members, and other individuals entitled to “national interest waivers” and who meet specified exemptions are allowed to enter the U.S., but only through one of 15 designated U.S. airports.
Until recently, the prevailing advice has been that for anyone impacted by the ban to apply for and obtain their visa at a U.S. Consulate, then fly to a country not on the list, wait there for 14 days, and then enter the U.S. (Of course, entry into the third country depends on that country’s entry and quarantine restrictions.)
HOWEVER….wait for it….
reports have been increasing that certain U.S. consulates are refusing to issue visas to anyone impacted by the ban regardless of whether or not they intend to travel to a third country and wait there for 14 days. Although the travel ban applies only to travel and entry and does NOT prohibit U.S. consulates from issuing visas to artists with valid USCIS approval notices, certain U.S. consulates have taken it upon themselves to go a step further, claiming that they have no way of guaranteeing that the visa holder won’t simply fly directly into the U.S.. Therefore, none shall pass.
As a result, if an artist has been approved for a U.S. visa, but a U.S. Consulate refuses to issue the visa based on the travel ban, then we recommend the following:
Travel to a country that is not on the U.S. travel ban list (such as Canada, Russia, or Barbados) and which has a U.S. Consulate that is open and issuing visas. (This is subject, of course, to that country’s own entry and quarantine restrictions. Many countries have their own strict quarantine and entry restrictions.)
Schedule your visa application appointment for 14 days after you arrive.
Document you arrival and your 14-day stay.
Once you receive your visa, fly directly to the U.S. (Transit back through a travel-banned country will re-trigger then ban and you will have to start all over again.)
II. National Interest Waiver Exceptions To The Travel Ban
Assuming an artist subject to the travel ban already has or can find a U.S. consulate willing to issue a visa, they “MAY” be able to obtain a “National Interest Waiver” and be allowed to enter the U.S. without having to quarantine first in a country not on the travel ban list. As you may imagine, the process is vague, convoluted, and labyrinthine, but broadly, there are two options to obtain such a waiver:
1. Apply for a National Interest Waiver at a U.S. Consulate
Every consulate has its own rules and procedures for how to do this, but, generally:
Contact the U.S. Consulate in whichever country you are physically located no earlier than 30 days prior to the date of travel.
Explain that you have an immediate need to travel to the U.S. within 30 days and cannot quarantine in a third country.
Provide a letter from your venue, presenter, employer, etc. explaining why it is critical that you be physically present in the U.S, that your work or performance is essential to them, and that it cannot be done remotely or via “streaming” outside of the U.S.
Agree to quarantine for 14 days after your arrival in the U.S.
You will then need remain while this is pending. If
the waiver is granted, you will be sent a letter to present to an immigration
officer when entering the U.S.
You will also need to check the website of the specific U.S. Consulate where you intend to apply for specific instructions.
2. Apply for a National Interest Waiver from U.S. Customs and Border Protection (USCBP)
Under a new procedure recently put in place by the Department of Homeland Insecurity (DHS) that they didn’t both to tell anyone about unless you went looking for it, you can also apply for a National Interest Waiver by contacting one of six airports which have been authorized to issue waivers: Boston, JFK, Miami, Newark, Chicago/O’Hare, Dallas/Fort Worth, LAX. As with applying at a U.S. Consulate, this needs to be done before you travel and the requirements are generally, more or less, somewhat, similar as those listed above for consulates. However, of course, each airport has a different procedure and there is no oversight, so you will need to visa the USCBP website for the specific airport where you intend to apply for specific instructions.
III. RFEs Are Being Issued on Maintaining Status During COVID
On July 31, we sent out an email reporting a two instances where USCIS appeared to be targeting unemployed artists currently in the U.S. and who either already had O-1 classification and were merely seeking a visa extension or who were seeking to change their classification from F-1 to O-1. In each instance, USCIS issued a Request for Evidence asking for proof that the artist has maintained their status by having work or other valid employment between March 2020 and the date of the petition, knowing full well that the entire arts and entertainment industry was unemployed at every level.
We then sent out a new email on August 1, saying we have just learned of another instance.
In what can only be described as a shocking degree of cold-hearted darkness, even for DHS, more such RFEs have continued to be issued. As such, this seems to be yet another obstacle shall have to overcome.
We provided some specific suggestions on how to deal with these RFEs in our June 30 the blog post “USCIS May Be Coming After Unemployed Artists” which you can find on our website. However, in general, when filing petitions on behalf of artists who are currently present in the U.S. and who wish to remain—regardless of whether this is their first O-1 or their third—you MUST include evidence that the artist has been working or performing during the pandemic AND that their future employment requires them to be physically present in the U.S. USCIS is arguing that engagements for performances intended for streaming can be done outside of the U.S. and do not require the artist to be physically present.
IV. Furlough-nado
Did anyone see this coming? For those of you who have may have missed this news amidst the cavalcade of plagues, fires, floods, injustice, riots, fascism, and world collapse that we have come to know as 2020, USCIS plans to furlough 13,500 employees on August 30, 2020 if they do not receive a requested 1.2 billion bailout from Congress. Several U.S. Senators have urged USCIS to postpone these furloughs, not because their care about immigration, but because the most recent projections indicate that USCIS had sufficient revenue to cover all its employees through the end of the current fiscal year and still have an enough balance to start the New Year. Regardless, USCIS claims this is not nearly enough, even with the fee increases that are set to go into effect on October 2, 2020. So, without consensus from Congress on this issue (and that’s less likely than a crawfish whistling the Mozart) and the clock ever ticking, the possibility of furloughs looms ever higher.
Here’s what you need to know:
USCIS does NOT intend to shut down or cease operations! However, furloughs will slow down the processing of applications and cause noticeable delays—particularly since, in recent months, USCIS has been relatively speedy given that petitions in many non-artist related visa categories has come to a grinding halt. Also, there has been no indication that Premium Processing will not continue to be available as an option. Therefore, so long as USCIS remains operational to some degree, then, to avoid premium processing on top of the other fee increases that will go into effect on October 2, consider filing petitions for Spring 2021 engagements sooner rather than later.
And, lastly, I leave you with this…
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 OUR NEW WEBSITE: ggartslaw.com
THE OFFICIAL LEGALESE:
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 or threatening email to someone, filing a lawsuit, or basically doing
anything that may in any way rely upon an assumption that we know what we are
talking about.
We have seen two Requests for Evidence (RFE) this week for foreign artists who are currently in the U.S. with O-1 classification (both of whom have been previously approved for O-1 classification multiple times) and who filed new O-1 petitions to extend their status and remain in the U.S. In each case, neither artist has had any engagements since early this year as, like everyone, all of their engagements were cancelled due to Covid-19. In each case, the RFE has asked for proof that the artist has maintained their status by having work or other valid employment between March 2020 and now.
USCIS is taking the position that remaining in the U.S. without work violates their O-1 classification regardless of the reason. While this requirement is technically correct, in my experience (and I am quite old) this rule has never previously been applied to artists as they are not required to have full-time employment in the first place. Regardless, taking this position at this time knowing that the entire performing arts world has been shut down and that many artists cannot logistically or safely leave the U.S. is unconscionable, shameful, callous, immoral, and sinister. (Which, as it happens, spells U.S.C.I.S.) In one instance, USCIS actually took the time to go onto an artist’s website to see that all of the artist’s spring dates were cancelled!
Whether or not two instances counts as a trend is debatable.
However, when it comes to USCIS, I have always taken the position that it only
takes one pig to nose its way out of the sty and soon the rest will follow. And,
on this particular farm, all of the farmers are too tap-shackled in a bacchanalian
orgy of hydroxychloroquine and bleach to notice what their pigs are up to.
So, when preparing O or P petitions for artists who are currently in the U.S. and wish to extend their status and remain, we recommend the following:
Do not list any cancelled dates on an artist’s website.
Do not mention in the petition that the artist’s recent U.S. dates were cancelled and have been re-scheduled for 2021. (Yes, one of the aforementioned cases did that.)
A petition must provide some type of evidence that the artist has been working during the pandemic. As artists are required to have work authorization regardless of whether or not they were paid, this does not have to include paid engagements. Anything that required the artist to be physically present in the U.S. will work: on-site rehearsals, in-person teaching, or live recordings or streaming with U.S. artists which could not have taken place outside of the U.S. There should also be no gaps longer than 60 days between such engagements.
You can use pay-stubs, emails, letters, or anything other than from the artist or the artist’s manager as proof.
This will also apply with regard to an artist’s future engagements listed on the petition. As no one knows when anyone will ever get back inside a theater or concert hall, many future engagements are being booked as streamed concerts. Such concerts must require the artist to be physically in the U.S., such as on-site rehearsals, in-person teaching, or live recordings or streaming with U.S. artists which could not have taken place outside of the U.S.
Both RFEs have taken issue with the fact that the artist’s future engagements have gaps in excess of 60 days. While there is no formal rule on how much time is allowed between engagements, in practice we have never seen USCIS baulk at anything less than 90 days. They seem now to have defaulted to 60 days.
While there has been no formal announcement regarding new policies, USCIS did formally clarify last month its longstanding policy that USCIS examiners have broad interpretive discretion to determine whether or not a petitioner has satisfied the requirements for a visa petition to be approved—which usually involves the examiner consulting with the gods of their reptilian forbears. As only a few weeks ago, the White Pride Piper attempted to kick out foreign students altogether for taking on-line classes, I am not surprised to see yet another effort to cull anyone they feel should not be here unemployed.
And I still don’t know when U.S. Consulates will start issuing visas again or how long the travel bans on citizens from certain countries being able to enter the U.S. will remain in place…although I cannot fathom why anyone would want to come here at the moment anyway.
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 OUR BRAND NEW WEBSITE: ggartslaw.com
THE
OFFICIAL LEGALESE:
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 or threatening email to someone, filing a lawsuit, or basically doing
anything that may in any way rely upon an assumption that we know what we are
talking about.
Last night, July 6, 2020, Immigration and Customs Enforcement (ICE) announced that all F-1 (student) visa holders attending schools that have decided to operate entirely on-line for the fall 2020 semester due to the COVID-19 pandemic will not be permitted to take a full online course load and remain in the U.S., forcing schools and non-U.S. students to make potentially life-threatening decisions if non-U.S. students wish to enter and/or remain in the U.S.
Click Here to read the proclamation:
Students who are currently outside the U.S. and are enrolled in schools that will be offering only on-line courses during the fall 2020 semester will not be permitted to receive F-1 visas (assuming they can find an open consulate) or enter the U.S. (assuming they are not already a citizen on the list of banned countries.) Such students who are already in the U.S. and enrolled in such programs will be required either to depart the U.S. or transfer to a school which will be offering in-person and/or on-campus courses. If they fail to do so, they will be subject to deportation proceedings.
Students attending schools that have decided to adopt a hybrid
model—that is, a mixture of on-line and in-person instruction—will be permitted
to remain and/or enter the U.S. provided such students are not taking an
entirely on-line course load for the fall 2020 semester and are taking only the
minimum number of on-line classes required to make normal progress in their
degree program.
No, we do not actually know how they will define “the minimum number of online classes
required to make normal progress in their degree program. Presumably,
they will be looking for hybrid programs that require the majority of the
course instruction to be in-person as opposed to on-line. In other words, offering
or requiring only a single in-person course and everything else on-line may not
be sufficient.
ICE has also given no clarification on how hybrid programs will be required to schedule the on-line versus in-person instruction throughout the fall 2020 semester. That is, we do not know whether or not F-1 students who are already outside of the U.S. will be permitted to enter if the first half of their fall 2020 semester will be on-line only with in-person courses to be determined later in the semester. They could be denied entry or required to leave until they will actually be taking in-person courses.
There is no indication at this time that this rule will have any impact on F-1 students who have completed their course of study and have either already been approved for or are eligible for OPT. They are not required to be taking courses in the first place as, presumably, they have already graduated. Those students on CPT, on the other hand, WILL be subject to these new rules. While there is not much we know definitively, at this time we are recommending the following:
Schools should consider developing hybrid programs that provide for some degree of socially distanced in-person rehearsals or one-on-one instructions throughout the fall 2020 semester.
Ensure that all F-1 students who are currently outside the U.S. be given additional documentation from their school that they can provide to consulate and immigration officers confirming that (i) they are not taking an entirely on-line course load and (ii) if the first part of the fall 2020 semester will be on-line, why such courses cannot be taken outside of the U.S.
Presenters, venues, agents, and managers should confirm that any F-1 artists they have engaged or represent are enrolled in schools with eligible hybrid programs for the fall 2020 semester.
Consider switching eligible students from F-1 to O-1 sooner rather than later.
There has been some speculation as to the motivations behind this, including that the White Pride Piper wants to force schools to re-open. More likely, however, is that he is taking advantage of the pandemic to further his previously stated desire to limit the number of F-1 students in the U.S. It has long been the opinion of the Ringwraiths in his administration that F-1 students pose an inherent threat to our self-perceived greatness.
Lastly, just as a reminder, many U.S. Consulates remain closed and the travel bans on citizens from certain countries being able to enter the U.S. remain in place.
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
THE
OFFICIAL LEGALESE:
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 or threatening email to someone, filing a lawsuit, or basically doing
anything that may in any way rely upon an assumption that we know what we are
talking about.
Most of you are aware by now that in fall 2018 a number of significant policy and procedural changes were imposed on the already exasperating process of obtaining U.S. artist visas. No surprisingly, these changes were the work of Donald Trump, who is also known by many other names: Cheeto-In-Chief, Trumpty Dumpty, Captain Chaos, Screaming Carrot Demon, Trumplethinskin, Darth Hater, The Tangerine Tornado, Agent Orange, Putin’s Papaya, Genghis Can’t, The Angry Creamsicle, Bumbledore, The Trumpet of Doom, The Tiny Tentacled Twitter Twat, Prima Donald, The White Pride Piper, and, my personal favourite, Baron Mango Von Wankerdoodle.
Over the last six months we have now had a chance to see how these new policies are actually being implemented and imposed. (For a more extensive analysis of the changes themselves, please re-read our earlier blog posts from September 2018 and November 2018 or visit our website www.ggartgslaw.com)
I. TROUBLES FOR STUDENT O-1 PETITIONS
The rise in Requests for Evidence (RFEs) and visa denials for young artists seeking their first O-1 visa has grown considerably. This has become particularly true for artists who are already in the U.S. on student visas and, after graduation, seek an O-1 visa to remain in the U.S.
Students who have entered the U.S. to pursue a course of study and who have only pursued their academic path without having also performed outside of the U.S. or also performed in non-academic concerts, recitals, and venues appear to be in the most peril.
Remember, in the twisted world of U.S. artist visas, “achievement” and “recognition” does not refer to an artist’s degree of talent, ability, technique, mastery of repertoire, or esteemed mentors. Rather, it refers primarily to the degree of an artist’s publicity and professional (non-academic) fame or infamy. In other words, an artist who has performed on Britain’s Got Talent or who has may have received a Gramophone Award for “World’s Worst Violinist” is more likely to be approved for an O-1 than an artist whose only credits are a Master’s Degree in the baroque flute and a flurry of accolades from teachers and professors attesting to her great talents and skills.
II. USCIS IS NO LONGER GIVING “DEFERENCE” TO PRIOR VISAS
Just today, we received one of the most shocking denials I have ever seen in over 20 years of preparing artist visas: the top program director of the official arts council of a large U.S. state, who has been working in the U.S. on an O-1 visa for three years and who has considerable international recognition for his expertise in arts administration and education, was DENIED a new O-1 on the basis that (a) he failed to show that he continued to be “extraordinary” since arriving in the U.S. and (b) his initial O-1 should never have been granted in the first place.
We are also currently addressing a green card application filed by a musician who is the First Chair of one of the world’s leading orchestras, with enough credits to fill a trophy case and over a decade of O-1 visas, who has been asked by USCIS to justify why it would be in the “national interest” of the U.S. for him to live here.
Whether these are isolated situations or a worsening trend, this is insane!
III. USCIS IS ASKING FOR ORIGINAL UNION LETTERS, NOT COPIES
When unions and peer groups issue no-objection letters, they will often email a scan to the petitioner with the original to follow later in the mail. To save time, petitioners will simply print out the scan and submit that with the petition. USCIS has recently been issuing RFEs for the ORIGINAL letter, claiming that this minimizing the risk of fraud.
IV. U.S.-BASED MANAGERS/AGENTS ARE BEING ASKED FOR ADDITIONAL “PROOF” OF PETITIONER AUTHORIZATION
When U.S-based booking agents or managers file petitions for their artists to perform at multiple venues, USCIS has been requiring each presenter or venue to provide a signed letter formally authorizing the manager/agent to include the engagement on the petition, even if the manager/agent booked the date in the first place and/or issued the engagement contract. Artists and groups are also being required to sign a similar letter authorizing the manager/agent to file the petition on their behalf. Whilst these authorizations literally need only be one sentence, not all presenters or venues will agree to sign these easily. The only way around this if for the manager/agent to directly employ the artist or group directly as the U.S. producer or promoter.
V. PROCESSING TIMES
However, due to a significant backlog, USCIS standard processing is taking anywhere from 1 – 3 months. Premium processed petitions continues to be reviewed within 15 days—but, remember, the processing fee was raised to $1410 last fall.
Yes, there are those out there who will tell you that they have had their petitions returned more quickly without paying for premium processing. However, that is purely anecdotal and not the norm. Even a blind bat can find its way out of cave if it bumps its head enough times.
In addition—and perhaps more significantly—there are delays in issuing receipt and approval notices (even with premium processing) as well as updating the USCIS database to reflect approvals. This is significant because (1) a receipt notice is necessary to schedule an application interview at the consulate and (2) the consulate will not issue a visa until it can confirm through the USCIS database that a petition has, in fact, been approved.
VI. U.S. CONSULATES
U.S. Consulates continue to run amuck, operating as autonomous city states subject to little to no oversight or supervision. As a result, there is a considerable lack of consistency with regard to what to expect when an artist goes to a consulate to apply for a visa.
Some consulates are asking for original approval notices as well as copies of the visa petition, even though they are supposed to ask for neither. However, predictably, we are mostly seeing this being an issue for students approved for their first O-1.
Many consulates are taking longer to process visa applications as they conduct more thorough background checks and fraud investigations. Depending upon an artist’s ethnicity and/or or past travel history, this can cause significant delays.
Again, contrary to what you may be hearing, the U.S. Consulate in London continues to be a nightmare for O-1 visas except for all but the most famous or well-known artists. If mangers or agents are telling you that their artists have had no trouble in London, congratulate them and then ignore them.
VII. ENTRY ON ESTA/VISITOR VISAS
This continues to be a significant obstacle. Please remember, except in very limited circumstances, artists are not authorized to enter and perform in the U.S. through ESTA or with a visitor (B-1/B-2) visa REGARDLESS OF WHETHER OR NOT THEY ARE PAID!
A non-U.S. artist manager was recently refused entry merely for saying that he was entering the U.S. to “help” one of his artists move out of his apartment. The immigration officer presumed “help” meant “providing professional services.” Whereas the same artist manager was permitted to enter only weeks before to attend a booking conference.
The primary issue continues to be that, even in those instances when an may be legally entitled to enter the U.S. either through ESTA or with a visitor (B-1/B-2) visa, an immigration officer the complete and unfettered authority to refuse entry to anyone for any reason.
As the rules can change at any time, it is critical that you consistently check with reliable sources (ie: not chat rooms, facebook groups, or “the collective mind”) for updates and developments before booking a non-U.S. artist or group. At the very least, it’s always best to check and confirm with multiple sources that whatever information you are given is, in fact, accurate. (As a general rule, the length of time someone claims to have been doing anything in the arts industry is often disproportionate to their actual expertise in knowing how to do it!)
As always, for official and reliable visa information, we recommend:
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 www.ggartslaw.com or www.gginternationalllc.com
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!
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:
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:
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:
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.
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:
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
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 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!
For those of you who are unaware, on February 28, 2018 U.S. Senators Orrin Hatch (R-Utah) and Patrick Leahy (D-Vt.), both former chairmen of the Senate Judiciary Committee, have introduced the Arts Require Timely Service Act (ARTS Act); a bill that would require U.S. Citizenship and Immigration Services to provide premium processing (15-day turnaround) free of charge for any arts-related O or P visa petition that it fails to adjudicate within 14 days as required by law. You can read the official press release here:
Many people have already asked us to weigh in on this development.
Be careful what you ask for.
First, and foremost, I must express my sincere awe and admiration with regard to the amazing and tireless arts advocacy of many people, but particularly that of Heather Noonan of the League of American Orchestras, who have been working on this for years. Given that this is actually a bill that is being “re-introduced”, having been previously introduced and rejected, getting it back on the table for re-consideration is nothing less than heroic.
However, as to my thoughts? Let me first share two recent Requests for Evidence (RFE) issued by USCIS which were brought to our attention. One asked for further evidence as to whether or not an artist who led a group which also bore the name of the artist performed a “critical role” with the group. The requested clarification as to an artist’s actual country of nationality where the petitioner wrote the word “German” as opposed to “Germany” on the i-129 form where it asked for “Country of Citizenship.” Given such stellar cognitive abilities, you can forgive my hesitation if my heart does not sing out to the heavens in joy and tearful gratitude over the prospect of merely speeding up a broken, illogical, frustrating, and inane process as opposed to actually proposing anything substantive to fix it. Its like offering the captain of the Titanic the option of actually averting the iceberg and, instead, having him decide merely to speed up the ship and get the disaster over with more quickly.
Its also important to understand that term “adjudicate” does not mean “approve.” An “adjudication” merely means that USCIS will review the petition and either approve it or issue an RFE. When an RFE is issued, the adjudication process is put on hold until the petitioner responds to the RFE. So, if passed, the prosed bill would provide that USCIS either has to approve a petition or issue an RFE within 14 days after a petition is received, or USCIS will be required to spew out some sort of inane dribble free of charge within the next 15 days to stop the clock and buy itself some more time. In short, if you want to guarantee any adjudication in less than 30 days, a petitioner will still be required to pay an additional $1225 for Premium Processing.
Nonetheless, given the lack of any meaningful acknowledgement or support of the arts on the part of the U.S. Government, I am always grateful for any crumbs that are tossed to us, however inadvertently, from the banqueting table. Still, I’d personally rather forgo free expedited USCIS processing time if it meant that, in exchange, USCIS would implement some sort of meaningful screening process when hiring USCIS examiners, as opposed to the current system of requiring only a pulse, potty training, and a patriotic dedication to protecting the American way of life from nefarious violinists.
In the meantime, I’ll take my crumbs, crawl back into my hole, and work on visa petitions.
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
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 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!
I am a musician on an O-1 visa that my agent got for me. It covers multiple engagements. Last September, I was hired to be a section musician with an orchestra. They have been paying me up until now, but now they are saying that legally they have to withhold my paycheck and can’t pay me because they just realized my visa does not name them specifically and I have to get another one just with their name on it if I want to get paid for the last two weeks. If I don’t, they say they have to fire me. They checked with their lawyer and he says its because their musician contracts require them to pay me as an employee and that my visa only covers independent contractors, not employees. He says that according the USCIS regulations [8 CFR 214.2(o)], employers must be listed on separate O-1 petitions where it says “employer” on the form. Is this true? I thought the O-1 allowed me to work for whomever I wanted because it was a multiple-employer O-1.
Sadly, we get this question a lot. To be fair, U.S. tax and immigration laws and regulations are a huge, big, stinking pile of insanity. Fortunately, most of the folks in our industry who work regularly with foreign artists make at least a valiant effort to figure out the rules as best they can, either by consulting experts or colleagues or through their own research. Unfortunately, there are others, be they forgotten in the bowels of a hugely complex institution or trapped in their own dark worlds of paranoia, anal retention, and over-simplicity, who do not. These include most, but, by no means all, of the following: (1) the international student officers and offices of most schools and universities; (2) the personnel directors of small orchestras; and (3) any non-profit with a volunteer attorney who only practices insurance law, but claims to be an expert on all subjects.
It appears that you have been dragged into the dark world of numbers (2) and, perhaps (3).
The O-1 visa category is not only available for artists, but also for the field of business, science, education, and athletics. Technically, the sodden-witted pignut at your orchestra is correct that, in most instances, an individual with an O-1 visa who works for more than one employer must file a separate petition for each employer. HOWEVER, he or she is ignoring the fact that USCIS regulations 8 CFR 214.2(o)(2)(iv)(D) provides an exception for artists (and ONLY artists) as follows:
In the case of a petition filed for an artist or entertainer, a petitioner may add additional performances or engagements during the validity period of the petition without filing an amended petition, provided the additional performances or engagements require an alien of O-1 caliber.
Moreover, for purposes of work authorization, USCIS does not make distinctions either between full-time and part-time employment or between employees and independent contractors. Why? Because as we try to remind everyone again and again and again and again and again: U.S. law requires anyone who “provides services” in the U.S. to have work authorization regardless of whether or not they are paid for such services. So, as a work visa is required even if an artist performs for free, the manner in which they are paid is irrelevant for immigration purposes.
Admittedly, what adds to the confusion is that USCIS requires the same USCIS form (i-129) to be completed not just for O-1 visa petitions, but for a whole alphabet of other visa petitions as well: E, H, P, L, M, R and Q, among others. Because of the government’s “one-size-fits-all” mentality, the i-129 form uses the broad term “employer” to cover every possible scenario in which one person can engage the services of another. In other words, USCIS does not use the term “employer” to refer exclusively to an “employer/employee” relationship.
The issue of whether or not an individual performing services for another should be paid as an “employee” or “independent contractor” is determined by various federal and state regulations, laws, and authorities, such as the Department of Labor and the IRS. USCIS is part of the Department of Homeland Security. Once it authorizes someone “to work”, it simply doesn’t care about how, or even if, they are paid. That’s not in its purview. Which means that, so long as your O-1 authorizes you to provide services to more than one entity, then you can be paid either as an employee or independent contractor. Your orchestra is not violating U.S. immigration law by paying you as an employee.
Amusingly, your orchestra is actually finds itself in even greater peril by refusing to pay you for work already performed. The same state federal and state regulations, laws, and authorities that determine whether or not someone is an employee or an independent contractor, also make it explicitly clear that it is illegal to refuse to pay someone for work already performed based on a claim that they violated immigration law. Its perfectly acceptable—nay, required—to refuse employment to or fire someone who is not legally authorized to work in the U.S. However, that does not apply retroactively. If the work has been performed, even illegally, the worker must be paid. Otherwise, unscrupulous employers would just hire foreign workers and then refuse to pay them. Work authorization and payment are to very different things!
So, there’s your answer. However, getting your orchestra to understand or accept this reality may not be easy. People in the aforementioned categories prefer simple answers to complex questions and are often loathe to accept nuance. So, here’s simple suggestion: Are you or your orchestra a member of the American Federation of Musicians? If so, stop reading this and call AFM now. Trust me, they will be more than happy to make this matter very simple for the orchestra indeed!
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
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 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!
Deep Thoughts
GG Arts Law provides a comprehensive range of legal services and strategic support for the performing arts, including: Artist Visas, Taxes, and Touring; Rights & Licensing; Negotiations & Representation; Contracts; Business & Non-Profit Organization & Management; Project Management; and Strategic Consulting & Planning.
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:
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 
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