Tonight’s televised announcement of the French Prime Minister was another blow to the performing arts. The bad news came although the government’s Coronavirus control efforts were aggressive and it was working. Masks are a requirement in any public place and permission to leave your home had to be formally declared and only authorized for vital activities like work, doctor appointments and to seek food or drugs. Gatherings could not exceed six persons. The second wave of the Covid-19 infection rate was turning downward (unlike the present US rate, which is three times higher and growing) but was still above the desire goal.
PM Jean Castex ordered this confinement and mask requirement to continue for the next three weeks, until January 7. Theaters and concert halls, along with movie theaters and sports stadiums, will continue to be shuttered, even though some orchestras, operas and ballet companies were in rehearsals expecting to open in a few days. Castex recognized that this was “a particularly painful decision” for all affected and he was certainly more aware than most of how the impact would be felt. Before President Macron made him prime minister on July 3, he was mayor of Prades, not far from the Spanish border. That small town happened to be the home of the Pablo Casals Festival every summer and he was chairman and actively involved in all facets of the festival. He certainly would be acutely aware of the impact the festival closure would have on the artists and staff and even the mere existence of the festival.
The hope is that infections continues to decline and that, by the January date, France can continue to return to normal and live performances again be on the menu.
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.
By: Frank Cadenhead. 28 September 2020. Tonight’s opening performance of Lully’s Le Bourgeois Gentilhomme at Paris’ Opéra Comique has been cancelled. The next four nights also. The reason: one of the “artistic team” has Covid-19. The performances of 3 to 8 October are still planned, with the assumption that the situation would be under control by then.
With a staging by Jérôme Deschamps and the Musiciens du Louvre conducted by Marc Minkowski, this was the last of a number of comédie-ballets by Lully and Molière. The theater will refund the price of tickets for cancelled performances. The financial impact of the loss of so many performances must be seriously painful to the theater and discouraging for the artists. “We are sorry for this situation and thank you in advance for your understanding” says the Opéra Comique. It is certainly something that is likely to be repeated in the coming months as many more performances return to the stage.
UPDATE, 29 September, 2020. Now it is the turn of the Opéra de Rouen. Sunday’s performance of Wagner’s Tannhauser was cancelled when a member of the artistic team was diagnosed with Covid-19. Today, the opera’s director, Loïc Lachenal, cancelled the two final performances with the discovery that another member of the team has the virus. “We can imagine the disappointment of the spectators and we share that” he affirmed. The opera had build a special platform for the orchestra, and other work, so that distances between players could be maintained. One can only imagine the financial – and spiritual – loss to the company.
By: Frank Cadenhead. The photo below – two recent front page features in a regional newspaper in France – suggests just how high the visibility is of the world of culture in France. It also suggests the wide concern about this world which is usually centered around a public assembly in these pandemic times. Art openings, operas, concerts, theater – they all depend on large gatherings.
Many major institutions are making past recordings of their performances available on the internet – most all for free – but those of us who actually make their way to the halls for live performance know that there is no substitute for experiencing the event together with others. The recordings, however well-captured, are not the same experience.
I am pleased to be in a country who values the performing arts as an important part of the national ideal. The 100 billion Euro “recovery” budget for France includes 2 billion for the support of the arts. While only 2% of the total, it will provide important support. No government aid is planned for US arts, for example, and their future – depending on strong ticket sales and the deep-pockets of the wealthy – is not assured and is a concern for all performing arts administrators.
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.
On July 31, 2020, DHS (The Department of Homeland (In)Security) issued a “Final Rule” confirming that USCIS (Unconscionable, Shameful, Callous, Immoral, and Sinister) will be imposing steep fee increases for visa petitions as well as creating new forms. Assuming that the many lawsuits and injunctions that are already in the works don’t stop this, then on October 2, 2020 the following changes will go into effect:
There will now be two different petition forms to file for O and P visas.
To file for O and O-2 visas, you will use an I-129O
To file for all P visas (P-1, P-1S, P-2, P-3, and P-3S), you will use an I-129MISC
The new fee for filing for an I-129O will be $705.
The new fee for filing an I-129MISC will be $695.
There will be a cap of 25 beneficiaries per petition.
This means that an orchestra or performance troupe with 60 performers and 10 staff and crew will now need to file four—yes 4! – I-129MISC petitions (3 for the performers and 1 for the staff and crew) at a cost of $2780 for standard processing. If they want premium processing, then that will be an additional cost of $5760.
This also means that if any one of the 4 petitions gets an RFE, they will all get an RFE.
And speaking of premium processing, the current premium processing fee of $1440 will remain. HOWEVER, premium processing will now be 15 business days as opposed to 15 calendar days—effectively making it 19 days.
As part of the Final Rule, DHS provides written responses to the thousands of comments it received in opposition of these changes, including specific concerns and objections raised from throughout the arts industry. To those of you interested in mucking through the Final Rule’s 500 pages of flaming simian excrementum just click on the actual picture of flaming simian excrementum, below:
However, in response to detailed comments submitted by hundreds of arts organizations objecting to these proposed changes, several DHS pearls caught my eye:
In response to the concerns that these changes will have a particularly burdensome impact on the already struggling performing arts industry, DHS contends that this will have no economic impact on those who file O and P petitions and writes:
“DHS does not intend to deter or unduly burden petitioners requesting workers in the arts, but any preferential treatment provided to petitioners for performers and musicians is borne by other petitioners, applicants, and requestors. DHS declines to require other applicants and petitioners subsidize the cost of petitioning for workers in the arts.”
TRANSLATION: “I once took my kid to the Monster Truck Dixie Rebel Stampede and Dinner Show and they charged me $17.50 for a Double Energy Mountain Dew! So, you people who work in the arts make more than enough money.”
As to why USCIS is charging more for O petitions than P petitions, DHS writes:
“DHS implements fees based on data that show adjudications of O nonimmigrant petitions require more staff, and are therefore more costly, than adjudications of petitions for nonimmigrant workers that may be requested using Form I129MISC.”
TRANSLATION: “It takes a lot of time to confirm whether or not the role of the Phantom of the Opera is, in fact, a lead or starring role. And because its an opera, you’ll need a no-objection letter from AGMA instead of Actor’s Equity.”
In response to the issue of whether or not USCIS will continue to consider traditional expedites for non-profits who have an emergency or an immediate need (such as replacing a sick U.S. artist with an available non-US artist), DHS writes:
“USCIS has implemented an expedite policy for certain petitions in the past. Whether a petitioner seeks to enhance the cultural and social interest in the United States may have been considered when USCIS decided to favorably exercise its discretion when considering expedite requests…DHS may consider whether to provide expedited processing for certain petitions based on its workload in other areas and ability to meet promised deadlines. Also, depending on the immigrant or nonimmigrant classification sought, the petitioner may request premium processing service by filing Form I-907 and paying the associated fee.
TRANSLATION: “We need the cash, so cough up the $1440 you Godless Leftists!
In response to the concern that increasing the premium processing period from 15 days to 19 days could imperil last minute engagements or emergencies, DHS writes:
DHS believes the possibility that a petitioner requesting premium processing service may need to wait a few additional days for adjudicative action is a small cost to impose for being able to expand premium processing to more requests and reduce the likelihood for future suspensions of premium processing service.
In response to the concern that putting a cap of 25 beneficiaries per petition could have a devastating financial impact on large performing arts tours, such as theater productions, orchestras, and dance companies, DHS responds:
USCIS must conduct full background checks on named workers and does not merely check to determine how much time the worker has spent outside of the United States…Because USCIS completes a background check for each named beneficiary, petitions with more named beneficiaries require more time and resources to adjudicate than petitions with fewer named beneficiaries. This means the cost to adjudicate a petition increases with each additional named beneficiary.
TRANSLATION: “Do you have any idea how long it takes to determine whether any of those musicians in the brass section have ever posted anything nasty about Beloved Leader?”
In response to the concern that, as USCIS often loses related petitions (such as O-1 and O-2 or P-1 and P-1S) and incorrectly sends them to different examiners who review them at different times, then requiring multiple petitions for the same large group will increase the likelihood of confusion and unnecessary RFEs, DHS asserts:
“DHS disagrees with commenters that the separating of Form I-129 will create confusion and delays.”
TRANSLATION: “Sorry we cannot offer any suggestions to address or solve your problem. Have we addressed all of your customer service concerns? Have you tried our special for premium processing service for our most valued customers?
Many commenters on behalf of multiple industries all raised the question of why do this now in the midst of a pandemic and a economic crisis impacting all industries, to which DHS responds:
DHS makes no changes in this rule in response to the pandemic. USCIS considers all available data at the time it conducts its fee review. USCIS conducted most of the FY 2019/2020 fee review in FY 2017, before the emergence of the pandemic. At that time, USCIS did not foresee, and could not reasonably have foreseen, the effects of such a pandemic on USCIS receipt, revenue, or cost projections during the FY 2019/2020 biennial period, and we cannot project the effects at this time. The projections in this rule were based on conventional conditions, and with no way of knowing or being able to predict the long-term effects of COVID-19 at this point, DHS must assume that filing volumes will return to near previous levels within a reasonable period.
TRANSLATION: “There is nothing to see here. All is well. Beloved Leader is the best leader in the world and all other leaders are jealous of him and his very large hands. All hail Believed Leader, Infallible General, Defender of the Faith, and Protector of the Good People Who Know Who You Are!”
And, on the heels of our recent post earlier in the day on July 31 that USCIS seems to be targeting artists who have remained in the U.S. during the pandemic without performing, we have learned of yet another artist receiving an RFE wherein USCIS is challenging whether or not the artist has been violating her status by remaining in the U.S. and not performing during the pandemic. So this may be a trend.
DHS’s recent actions, fueled by its spurious and odious responses to very legitimate concerns raised by an industry already struggling for survival throughout the world, needs to further the already excessively tested resolve of all of us to keep the doors open to artists throughout the world. In short, we shall fight them by being cleverer, more creative, and smarter than they are. We shall fight them in our petitions. We shall fight them at the consulates. We shall fight them at the airport immigration halls. We shall fight them with mockery, distain, and relentless provocation. We shall fight them at the ballot box, but we shall never surrender!
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.
The July 14th Concert at the foot of the Eiffel Tower in Paris went ahead as planned last night – with some adjustments for the current health climate. This iconic Bastille Day event, followed by a famous fireworks display, is now in the eighth year, and was televised in France, on Eurovision throughout Europe, and on television in more than 50 countries and on the internet around the world.
Conducted by Eun Sun Kim, the Orchestre National de France had only 65 musicians on stage for this performance (about half of normal) but was also on occasion joined by the children’s and adult Radio France choirs on stage garding a certain space between each vocalist. The star-filled lineup includes singers Ludovic Tézier, Benjamin Bernheim, Fatma Said, Sonya Yoncheva, the cellist Sol Gabetta, violinist Lisa Batiashvili, with 21-year-old Lucienne Renaudin Vary on the trumpet playing music from West Side Story, and pianist Khatia Buniatishvili. The lack of audience drained some of the spirit out of the event and the only applause for the performers was from the orchestra members themselves. Looking briefly at the long and empty park space, Champ de Mars in front of the stage was sad, remembering that the previous year counted some 300,000 attendees. Seeing the sun set on Paris from the circulating helicopter, however, gave some solace. It was followed by the spectacular fire works display using the Eiffel Tower as the centerpiece.
The only part of the concert now on YouTube is Yoncheva singing “Eben? Ne andro lontana” from Catalani’s La Wally – the aria brought to the world by the film Diva. The entire concert will probably be available on YouTube soon.
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.
