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<\/a>legal and business issues for the performing arts, visit ggartslaw.com<\/a><\/p>\nBy Brian Taylor Goldstein, Esq.<\/p>\n
Dear Law and Disorder:<\/i><\/p>\n
We filed visa petitions for O-1 and an O-2 visas. USCIS is asking for a contract between each of the O-2s and either the petitioner or the employers. This has never been an issue before and we\u2019ve been doing this for 20 years. They are also asking for a union consult letter for one of the O-2s whose title is \u201cMovement Coach.\u201d We got a consult from IATSE for the others, but IATSE doesn\u2019t cover this. USCIS is suggesting that we get a consult from AGMA. Do we have to do that? Can we use a letter from a peer organization like TCG or APAP instead?<\/i><\/p>\n
Thanks for giving me an excuse to rant about USCIS and the new challenges of obtaining visas for artists who wish to perform and tour in the U.S. I haven\u2019t done that for almost a month now.<\/p>\n
Both the Vermont and California Service Centers continue to shoot back frustrating Requests for Evidence (RFEs) and to scrutinize petitions like never before. They appear to be paying special attention to O-2, P-1S, and P-3S petitions for support staff. It has now become de rigueur for USCIS to require that employment terms for each member of the support staff be specified, including who is paying them and how much they are being paid. They are also asking for resumes for each person and a specific statement of why each person is necessary and critical to the performance or concert.<\/p>\n
You can also expect new troubles with P-3 petitions for culturally unique artists and groups. While P-3 petitions have always had their own complexities, both service centers are now reiterating that an artist or group cannot be culturally unique and also perform anything that is \u201ccontemporary\u201d or \u201cmodern.\u201d One RFE I saw stated that: \u201cThe contents and themes of a particular form of art may also contain elements and influences of a given culture, and yet still not meet the definition of “culturally unique.” Also, simply because a form of art may be unique, it does not necessarily follow that it meets die regulatory definition of “culturally unique<\/i>.” Another USCIS examiner recently wrote:<\/p>\n
It is not enough for the author of a testimonial letter to simply state that the beneficiaries have cultural, artistic, and\/or culturally unique skills. The testimonials should be detailed and specific in describing what the beneficiaries’ skills are; how the beneficiaries obtained those skills; how and why those skills are associated with a “culturally unique” art form; and what the defining aspects of the beneficiaries’ particular art form are that make it “culturally unique” as opposed to other forms of the creative activity or endeavor. Furthermore, it is not sufficient to simply state that an artist represents his or her culture.<\/i><\/p>\n
Speaking of testimonial letters, I am continuing to see USCIS request \u201cindependent evidence\u201d establishing that each expert is, in fact, a \u201crecognized expert.\u201d Whether or not this means that the experts must now have experts, simply attaching the expert\u2019s resume is no longer sufficient. USCIS is continuing to ask for articles and websites verifying each expert\u2019s credentials.<\/p>\n
In addition to targeting P-3 petitions and petitions for support staff in all categories, USCIS also appears to be focusing the all-seeing eye of Sauron on young artists, particular recent graduates who may still be in F-1 status. Any appearance of the words \u201cyoung\u201d or \u201crising\u201d or \u201cup and coming\u201d will bring a certain RFE. You also need to focus on the \u201cprofessional\u201d work of the artist and put as much distance as you can between the artist and any school or training experience.<\/p>\n
As for union consultations, letters from peer groups and service organizations have never been an alternative where a union covers the specific job title. However, while USCIS may have let this slip in the past, this is no longer the case. If they even smell the applicability of a union, then you must provide evidence of a union consultation (which could include a union objection. Remember, the unions do NOT have to approve any petition. They only have the right to be \u201cconsulted.\u201d) In your case, USCIS is correct: AGMA is the appropriate union for a \u201cMovement Coach.\u201d<\/p>\n
USCIS is also being remarkably inconsistent in processing times, as well. Just this week, I received an approval notice from the California Service Center three days after the petition was filed\u2014and without premium processing! I\u2019m not complaining, but the same service center took over three months to adjudicate a petition I filed in April. More recently, the Vermont Service Center approved a P-1 petition in two weeks, but lost the accompanying P-1S petition I had filed at the same time. This only serves to make an already unpredictable process even more unpredictable. The only thing I can say with certainty is that the \u201cofficial\u201d reported processing times that you will find posted on the USCIS webpage are about as reliable as a cheesecloth condom!<\/p>\n
The best you can do at this point is exhaustively document your petitions, allow lots of extra time, plan for the worst, anticipate USCIS stupidity, and, with any luck and few talismans, be pleasantly surprised. In short, whatever you did in the past, all that changed after January 2014. Welcome to the new visa reality!<\/p>\n
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For additional information and resources on this and other <\/a>legal and business issues for the performing arts, visit ggartslaw.com<\/a><\/p>\n