Happy New Year! Let’s hope the 2021 we wanted finally comes in 2022,
Perhaps you were as surprised as I to wake up Christmas morning to discover that the U.S. Department of State had left an actual gift in our stockings. Not too much, and not too expensive, but it’s the thought that counts.
In order to address the ongoing delays and backlogs in obtaining visa application appointments at U.S. Consulates, the Department of State announced on December 23, 2021 that it was expanding its policy of permitting U.S. Consulates to waive in-person appointments/interviews for visa applications and allowing applicants to apply for visas merely by mailing in the passport and with no in-person appointment/interview required. A such, effective immediately:
Anyone needing to apply for an O or P visa who has ever been issued a U.S. visa in any visa category (B, F, O, P, J, etc) at any time in the past is now eligible for an in-person appointment/interview waiver.
Anyone needing to apply for an O or P visa who has never been approved for a U.S. visa before is also now eligible for an in-person appointment/interview waiver provided:
(1) They are a citizen of a country that participates in the US. Visa Waiver Programme (VWP); and
(2) They have previously traveled to the U.S. at least once before under ESTA (Electronic System for Travel Authorization).
Anyone needing to apply for an O or P visa who has previously been issued an O or P visa within the last 48 months of the prior visa’s expiration date is also eligible for an in-person appointment/interview waiver.
There are two important additional requirements:
(1) The visa applicant’s O or P petition must be approved by USCIS by the time they submit their passport to the consulate; and
(2) The visa application must be submitted at the U.S. Consulate located in the country of which they are a citizen or permanent resident. It is still possible to apply for a visa any ANY U.S. Consulate in the world. However, you will not be eligible for an in-person appointment/interview waiver unless you apply at the U.S. Consulate located in the country where you are a citizen or permanent resident.
As always, U.S. Consulates set their own procedures and policies with regard to how they implement directives from the Department of State. So, the process for requesting an in-person appointment/interview waiver will vary from consulate to consulate, even with regard to consulates within the same country. However, in general, to apply for a visa and request an in-person appointment/interview waiver, the applicant should:
(1) Go to the website of the U.S. Consulate located in the country of which they are a citizen or permanent resident to check for updates and specific policies.
(2) Complete a DS-160 and pay the application fee.
(3) Follow the instructions for requesting an in-person appointment/interview waiver.
Whether or not an in-person appointment/interview waiver will be granted will continue to remain at the discretion of the U.S. Consulate. In general, any applicant who has ever been refused a visa in the past will not qualify, unless that refusal was overcome or waived, and there can be no apparent or potential ineligibilities. Also, due to ongoing staff shortages U.S. Consulates around the world as a result of COVID and the insidiously prolific variations of its mephistophelian offspring, some U.S. Consulates may limit the visa categories eligible for in-person appointment/ interview waivers as well as limit the number of total waivers they are able to process in all categories any given time
For those interested in reading the actual U.S. State Department announcement, click here on the helpful government information specialist:
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.
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.
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.
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.
To those of you wondering what is happening with The Screaming Carrot Demon’s immigration ban, his Executive Order slithered out of the White House today. Here’s the deal:
Today’s spewage only addresses immigrant visas (green cards). Though there is a fairly long list of exceptions, for the next 60 days people outside the U.S. will not be able to receive green cards even if they have already been approved.
The Executive Order states that another order will be issued dealing with non-immigrant visas (O and P) in 30 days. However, so long as the consulates remain closed, no one is getting visas O and P visas anyway. All U.S. embassies and consulates have currently suspended non-immigrant interviews and are not issuing visas. No announcement has been made about when the government plans to reopen them. It is likely that consulates will reopen on a rolling, country-by-country basis depending on when Trump’s ego next sees its shadow. Not surprisingly, if Trump wanted to thwart O and P visas, he would not need to issue an Executive Order. The State Department could just keep the consulates closed or on a reduced staff. However, an Executive Order is better for red hat ratings.
In the meantime, USCIS service centers continue to receive and process visa petitions, issue receipt notices and approval notices—as well as RFEs and Denials. (Not all human viruses are microscopic!) So long as USCIS continues to process petitions, I “suspect” that artists who are already in the U.S. will continue to be able to extend and/or change their status, but those outside who get approved petitions will have to wait until the consulates re-open.
For those of you so inclined, here is a link to the actual Executive Order, which can also be printed out and used as a Covid mask.
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 email, filing a lawsuit, or doing anything rash!
Shocking as it may sound, USCIS has passed a tiny wind of hope in the direction of artist visas during this coronavirus pandemic.
The Department of Homeland Security (which sets the policies for USCIS) has confirmed that applying for unemployment benefits and/or applying for benefits under the recently enacted Coronavirus Aid, Relief, and Economic Security (CARES) Act WILL NOT be taken into consideration as violations of the Public Charge Rule when reviewing petitions for O or P status or green cards. (This does not include Medicaid or any government program (other than unemployment or CARES) which requires a “means test”—ie: programs which require someone to show that they make under a certain level of income.
It remains to be seen as to whether or not applying for or receiving unemployment benefits will later be insidiously used by USCIS as a “gotcha” under the separate rule that if an artist becomes unemployed, they are not authorized to remain in the U.S. and look for work and are required to leave. So, applying for unemployment benefits could “theoretically” still be used by USCIS as an admission by an artist that they have no work. However, as I wrote last week, USCIS has also generally, sorta, kinda, implied that they will be “reasonable” in light of the Covid-19 situation…and that’s about as good as you’re going to get from them until they change their minds.
For now, if any non-US artist finds themselves furloughed or unemployed, which is likely to be most of you, you may now take advantage of whatever unemployment and/or CARES benefits you may be entitled to. So glissando, tap dance, and project your way to those websites and start applying before the airlines and pharmaceutical companies gobble all the funds up. Godspeed.
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 email, filing a lawsuit, or doing anything rash!
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.
