Welcome To The New Visa Reality!
By Brian Taylor Goldstein, Esq.
Dear Law and Disorder:
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’ve been doing this for 20 years. They are also asking for a union consult letter for one of the O-2s whose title is “Movement Coach.” We got a consult from IATSE for the others, but IATSE doesn’t 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?
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’t done that for almost a month now.
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.
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 “contemporary” or “modern.” One RFE I saw stated that: “The 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.” Another USCIS examiner recently wrote:
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.
Speaking of testimonial letters, I am continuing to see USCIS request “independent evidence” establishing that each expert is, in fact, a “recognized expert.” Whether or not this means that the experts must now have experts, simply attaching the expert’s resume is no longer sufficient. USCIS is continuing to ask for articles and websites verifying each expert’s credentials.
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 “young” or “rising” or “up and coming” will bring a certain RFE. You also need to focus on the “professional” work of the artist and put as much distance as you can between the artist and any school or training experience.
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 “consulted.”) In your case, USCIS is correct: AGMA is the appropriate union for a “Movement Coach.”
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—and without premium processing! I’m 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 “official” reported processing times that you will find posted on the USCIS webpage are about as reliable as a cheesecloth condom!
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!
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For additional information and resources on this and other 
legal and business issues for the performing arts, visit ggartslaw.com
To ask your own question, write to lawanddisorder@musicalamerica.org.
All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.
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THE OFFICIAL DISCLAIMER:
THIS IS NOT LEGAL ADVICE!
The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags: agma, approval notice, artist, Brian Taylor, consultations, Goldstein, petitioner, petitions, processing times, rfe, support staff, Tour, uscis, visa petition, visa petitions, visas, work, young artist