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WHY ARE ARTISTS BEING DENIED ENTRY INTO THE US? HOW DID IT COME TO THIS AND WHO DO WE BLAME?

Friday, March 17th, 2017

By Brian Taylor Goldstein, Esq.   

By now, you should all be aware that the incidents of artists and performers from a wide range of nationalities arriving in the United States as visitors (either on visitor visas (B-1/B-2) or through the visa waiver/ESTA program) and being refused entry are growing at an alarming rate. These artists are being pulled aside, subjected to hours of questioning, and, in many instances, being handcuffed and held overnight until return flights become available…all without the benefit of being able to contact anyone or seek counsel.

We should all be angry and outraged. However, the value of general cathartic explosions notwithstanding, it is important to know whom to blame and where to focus all of the outrage and anger.

First and foremost, unlike some artists and others have asserted, no laws or regulations have been changed with regard to the visa waiver/ESTA program. To the contrary, ever since the United States immigration laws were overhauled in the 1990s, it has always been the case that artists are not permitted to perform in the US either on visitor visas or through the visa waiver/ESTA program regardless of whether or not artists are paid or whether or not tickets are sold. In order to perform, artists must have an appropriate artist visa—which, in most cases, is going to be either an O visa or a P visa.

Very often, an artist, manager, or presenter will contact our office in situations where there has been a list minute engagement opportunity and there is no time for an artist to obtain an O or P visa. They will almost always ask whether the artist can perform without an O visa or P visa if the artist does not get paid—or, worse, presume that this is the case. No! Payment—or lack thereof—is not the deciding factor. The deciding factor is whether or not there is an audience.

One of the few exceptions to this counter-intuitive restriction is that an artist may enter the US either on a visitor visa or through visa waiver/ESTA provided the artist’s sole purpose is to audition or perform a showcase for the sole purpose of obtaining future work and engagements and provided ALL of the following requirements are met:

(1) The artist is not being paid;

(2) The performance is closed to the public; AND

(3) The performance is restricted to promoters, managers, presenters, bookers or other industry professionals who book or engage artists.

Merely calling a performance a “showcase” does not make it a showcase. Performing, even for free, in the hopes of obtaining future engagements is not sufficient. Rather, the narrow crack in the otherwise strict prohibition against artists performing without an O visa or P visa was created purely to allow artists to attend booking conferences (such as Arts Midwest, PAE, or APAP) or a traditional audition where the artist performs before a few gruff and aloof producers or directors. If at any time the general public is allowed to attend (even if no tickets are sold), then it is not considered an “audition” or “showcase” and the exception does not apply.  Accordingly, promotional and publicity tours do not qualify either. Similarly, if an artist is entering to perform as part of training program and the performance is open to the public, the exception also does not apply.

As to why such onerous restrictions were ever enacted in the first place, the “official” argument is that it was to protect the United States labor market. True as this may be, it reflects an offensive disregard of the fact that artists are unique and all performances, good or bad, are distinctive. Unlike non-US manufacturing labor who arguably may have similar training and experience as their US counterparts, non-US artists cannot merely be substituted or swapped for a US alternative who just happen to have similar technical abilities. If you have seen one artist, you most definitely have not seen them all. However, without in the least defending these regulations, it is worth bearing in mind that the United States has no Ministry of Culture to advocate policy on behalf of arts and artists. Rather, the arts must rely upon a loose coalition of independently funded arts advocates and institutions whose impassionate pleas are shouted from the wastelands of Whoville. While we also have a National Endowment for the Arts titularly funded by the government, it is purely a granting institution which admirably struggles to disburse crumbs and scraps to the artists crowded at the children’s table—and which, as of today, President Trump has proposed to eliminate entirely.

Nevertheless, for many years festivals, presenters, venues, schools, and others have expanded and relied upon the narrow “audition” or “showcase” exception by providing artists with a letter asserting that an artist is entering to perform an “audition” or “showcase”, is not being paid, and that the audience is restricted only to industry professionals. With only the rarest of exceptions, this usually worked. To be fair, it probably shouldn’t have worked as often as it did, but no harm no foul.

Then came President Trump.

Without having to amend or change any existing laws, the recent Executive Orders have imposed immediate “heightened scrutiny” and “extreme vetting” at all levels of the immigration process by mandating strict enforcement of laws and regulations already in place. (Sadly, these particular directives are not amongst those subject to the recent judicial restraining orders and stays.) As a result, we have entered a new era whereby all immigration officers, examiners, and other officials have now been instructed to “believe none” and “suspect all.”

For those of us in the arts and entertainment field, this means that artists who have hitherto had little trouble entering and performing either on a visitor visas or through visa waiver/ESTA—even in those instances where they were never supposed to do so—are now being stopped, questioned, and turned away. Just as bad, artists such as authors, painters, and designers who are legitimately entering the United States as visitors to attend conferences or to attend performances or exhibitions of works they created entirely outside of the US are now at a greater risk of being turned away merely by admitting that they are artists and do not have an artist visas.

As I was once taught by a senior attorney whom, in retrospect, should never really have been mentoring anyone in the first place, solving any problem first requires the assessment of blame. In this case, as frustrating as it is, it is not entirely appropriate to blame immigration or consular officers who, however aggressively, are being instructed to enforce laws that have always been there to enforce. Nor is it reasonable to presume a vast conspiracy focused on artists from specific countries. Rather, a more reasonable assessment of culpability would be as follows:

(1) The immigration laws and regulations that have always been unreasonable and unduly burdensome for decades with regard to artists, but which have gone unchallenged and mostly unnoticed because they were unenforced without any degree of consistency.

(2) The venues, record labels, managers, and others who offhandedly give artists bad advice with the air of authority, but without the burden of accuracy.

(3) The artists who are all too willing to accept without challenge the venues, record labels, and managers so long as they are being told what they want to hear.

(4) The United States government which, as opposed to targeting artists with the explicit intention of thwarting efforts to promote tolerance and understanding through artistic exchange, is oblivious that the arts exist in the first place, much less serve any purpose.

(5) The White House for boastfully implementing a new paradigm whereby all are presumed guilty until proven innocent.

Aside from continuing to shout, scream, and protest through every available platform, what’s to be done?

(1) Whether you believe an artist requires a visa or not, if it is at all possible for an artist to obtain a visa, do so.

  • Having an O or P visa does not guaranty entry as both consulate officers and immigration offers have the unrestricted authority to deny visas or deny entry at any time for any reason. However, having an actual O or P visa in an artist’s passport will go a long way towards ameliorating the immediate presumption of an immigration officer that an artist arriving as a visitor is doing purely to threaten our way of life.

(2) If an artist legitimately meets the narrow “audition” or “showcase” exception, then the artist needs to be properly briefed and prepared as to what to expect and how best to answer invasive and probing questions in an atmosphere of stress and intimidation

  • This means that, in addition to providing a letter from the festival, presenter, or venue, the artist should also be armed with documentation about the booking conference or audition itself—such as a list of attendees, information about the production or entity for whom the artist is auditioning, etc.
  • Make sure there are no press releases, announcements, or other information on either the artist’s or venue’s website (or anywhere on the internet for that matter) suggesting or announcing that that artist is “touring” or “appearing” in the United States, much less providing a schedule of US engagements—particularly since, legally, there can be no US engagements!
  • The artist should have return tickets already booked to establish that the artist will only be staying in the United States for the time necessary to arrive, audition, and leave.

(3) Review an artist’s prior travel to the United States to make sure they have not previously engaged in any un-authorized performances and, if so, be prepared to address this.

(4) Make sure an artist has at least a few materials (such as reviews or CDs) establishing that the artist is, in fact, an artist.

(5) Whether you’re dealing with immigration, royalties, contracts, or licensing, Artists need to be at the forefront of their own business. Don’t presume the people advising you are knowledgeable or even have your best interest in mind. At the end of the day, if you have to cancel a performance or, worse, get deported, the festival, venue, or manager will move on. Its YOUR career on the line!

(6) Lastly, if an artist does get stopped, pulled aside, and faces the possibility of a refused admission, the artist should voluntarily request to withdraw his or her request to enter the United States and voluntarily offer to return home. Voluntarily withdrawing a request to enter does not count as a “denied entry” and will not blemish an artist’s immigration record for future travel. On the other hand, insisting on entry and then being “denied entry” and forcibly returned can have serious implications on future travel.

We are all on a roller coaster that shows no signs of slowing down. As we continue to hold on to the bar, we also continue to recommend that everyone consistently check with reliable sources (ie: not chat rooms or random google searches) for updates and developments before making any travel decisions, applying for visas, booking foreign artists, or entering to perform on visitor visas or through the visa waiver/ESTA program. We recommend:

1) www.artistsfromabroad.org

2) The USCIS website: www.uscis.gov

3) The US Department of State website: www.travel.state.gov

4) The US Customs and Border Patrol website: www.cbp.gov

5) The American Immigration Lawyers Association (www.aila.org)  

And we will continue to update on our blogs, social media, and newsletters as changes occur.

__________________________________________________________________

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

To ask your own question, write to

lawanddisorder@musicalamerica.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 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!

 

 

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Posted in Artist Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

What In The World Is Going On With Artist Visas as of March 7, 2017?

Saturday, March 11th, 2017

By Brian Taylor Goldstein, Esq.

Here we go again…

On March 6, 2017, President Trump issued a new Executive Order regarding US immigration to replace the previous Executive Order of January 27, 2017. The new Order takes effect on March 16, 2017 and expressly revokes the January 27, 2017 Order (which had been subject to a court issued temporary restraining order anyway.) The new Order…

  • Bans immigrant and nonimmigrant entries for citizens of six designated countries – Syria, Iran, Libya, Somalia, Sudan, and Yemen – for at least 90 days beginning on March 16, 2017. The new Order no longer includes Iraqi nationals in the 90-day travel ban.
  • Exempts certain categories of people, including lawful permanent residents (US “Green Card” holders), current US visa holders, and dual nationals traveling on a passport from a country that is not one of the six designated countries.
  • Confirms that no visa issued before March 16, 2017 will be revoked as a result of the Order, and that any individual with a revoked or cancelled visa as a result of the prior, January 27, 2017 Order is entitled to a travel document for travel and entry to the US. After March 16, 2017, nationals from the list of six countries will no longer receive visas, even if they have been approved for visas by USCIS.
  • Allows for exceptions and case-by-case waivers.
  • Provides that after 90 days, the citizens of these countries can be permanently banned.
  • Provides that the Secretary of State, Attorney General or Secretary of the Department of Homeland Security can at any time recommend that additional countries be added to the list or taken off of the list.
  • Immediately suspends the Visa Interview Waiver Program (VIWP) and effectively mandates in-person interviews for all nonimmigrant visa applicants.
  • Mandates heightened vetting and screening procedures at all levels of the immigration process, particularly immigrants and non-immigrants “who seek to enter the United States on a fraudulent basis.”

While there are other portions of the new Order that impact other areas of immigration, our main focus is on how all of this applies to artists and the Performing Arts. In the case of the new Executive Order, its actually the last two provisions which will have the most widespread impact on foreign artists. Here’s what you need to know:

HEIGHTENED VETTING AND SCREENING PROCEDURES AT ALL LEVELS OF THE IMMIGRATION PROCESS:   

It means that when seeking an O or P visa, regardless of the nationality of an artist, artists  may encounter additional scrutiny and delays at each stage of the process—from  petitioning USCIS for visa approval, to consulates issuing visas, to Immigration Officer’s admitting artists at the border. This applies to artists from any country in the world.

Given that the new Order specifically requires heightened vetting and screening of those “who seek to enter the United States on a fraudulent basis”, there is going to be even  more scrutiny and less forgiveness than ever before with regard to artists attempting to enter the US on visitor visas (B-1/B-2) or through the Visa Waiver Program (“ESTA”). We are already receiving reports of artists being held and detained for hours  upon entering the US to determine whether or not they are performing. Even artists  entering as visitors for the purpose of attending a conference or “performing a showcase” are being pulled aside and, in many cases, being refused entry. Artists entering with B- 1/B-2 visas or through the Visa Waiver Program (ESTA) are being pulled aside the  moment they say that they are “entertainers”, “performers”, or “artists.”

When an individual is held and detained, they are subject to interrogation as well as  demands to inspect their cell phones, luggage, and personal items. Any refusals can be groups for a refused entry, which will then stay on an artist’s record impeding future  visas and travel.

Everyone needs to understand and accept that: Artists cannot perform on visitor visas  (B-1/B-2) or through the Visa Waiver Program (“ESTA”) regardless of whether or   not they are being paid and regarding of whether or not tickets are sold. Except in   the most narrowly defined circumstances, US immigration law has always defined  “work” as it pertains to artists, as any kind of performance. Artists denied entry on the basis of fraud, will have a denied entry on their record, impeding future visas and travel.

Some presenters and venues in the US—particularly festivals and academic institutions  continue to advise artists that O and P visas are not required if an artist is not being paid  and/or if the performance is part of a training program. This is incorrect and always has been.

In addition, while artists with O and P visas, on the average, seem to be experiencing less trouble, even O and P visa holders, as well as green card holders, are being held and  detained in instances where an Immigration Officer believes they are citizens of or traveling from ANY country in the world whom they believe could pose a threat to the  US.

In short (I know, too late), an Immigration Officer has the unfettered authority and  discretion to deny entry to any artist from any nationality for any reason. To what   extent this authority will be exercised remains to be seen.

THE SUSPENSION OF THE VISA INTERVIEW WAIVER PROGRAM (VIWP) 

While it has always been subject to the discretion of each consulate, the VIWP allowed consular officers to waive the interview requirement for applicants seeking to renew nonimmigrant O and P visas within 12 months of expiration of the initial visa in the same classification. The VIWP has been used to waive the interview requirement only for travelers who have already been vetted and determined to be a low security risk and who have a demonstrated track record of stable employment and stable travel.

By suspending the program, all artists will be required to have a personal interview in order to receive a new visa regardless of when their last O or P visa was issued or whether or not they were previously allowed to receive a visa under the VIWP.

Until additional consular staff is hired, Order will place enormous burdens on U.S. consulates and embassies – particularly high-volume consulates – by increasing already extended interview wait times and processing times, wasting limited resources, and potentially decreasing the quality of consular interviews.

HOW DOES THE NEW ORDER IMPACT ARTISTS FROM THE 6 BANNED COUNTRIES (IRAN, LIBYA, SOMALIA, SUDAN, SYRIA, AND YEMEN?  

  • If the artist is a citizen of one of those countries, but already has a US visa or Green Card, then “officially” the ban does not apply to them. However, they should still expect “heightened vetting and screening procedures.” Also, once their visas expire, they will need to leave the US and will not be eligible for new ones.
  • If an artist from one of these countries has not yet been issued a visa by March 16, 2017, they are not going to get one. This includes students.
  • If an artist who is citizen of one of these countries is also a citizen of another country not on the list (for example, a citizen of both Iran and Canada), they WILL be allowed to receive visas and travel to the US PROVIDED the visa is stamped into the passport from the non-banned country and they only travel on the passport from the non-banned country. However, they should still expect “heightened vetting and screening procedures.”
  • The Order does not apply to artists who may have been born in one of the banned countries, but who are no longer citizens. However, they should still expect “heightened vetting and screening procedures.”
  • The Order does not apply to artists who may have been merely visited or performed in one of the banned countries. However, they should still expect “heightened vetting and screening procedures.”

WHAT DO WE RECOMMEND?

  •  All artists, regardless of nationality, she travel to the US with copies of their I-797 visa approval notices and maintain such copies, along with copies of their visas, on their person at all times while in the US. In addition to US Immigration Customs and Enforcement (ICE), state and local police can also demand proof of valid immigration status at any time while an artist is in the US.
  • Artists from all countries should not attempt to enter the US on visitor visas (B-1/B-2) or through the Visa Waiver Program (“ESTA”) except in the most narrow of circumstances. For example, performing at a booking conference (Arts Midwest, PAE, APAP, etc.) where only registered attendees are permitted to attend or performing at a competition or non-public audition are still permitted in visitor status. However, whether or not an Immigration Officer will continue to understand and accept these exceptions remains to be seen. In such instances, make sure such an artist is properly advised ahead of time and travels with extensive supporting evidence.
  • Plan well in advance when submitted visa petitions to USCIS and allow for extra time for US consulates to issue visas.
  • Review an artist’s prior travel to the US to make sure they have not engaged in any un-authorized performances and, if so, plan accordingly.
  • Artists should bring snacks when traveling into the US in case they are held or detained as there is no food available. We recommend beef jerky. But not hummus.
  • Plan and prepare, not panic.

As our office continues to address issues and implications on the front lines, we are relying upon the American Immigration Lawyers Association (AILA), The League of American Orchestras, the US Performing Arts Task Force, and other vital organizations who continue to monitor and report on the situation at all levels. AILA does not believe the new Order will withstand judicial scrutiny since the targeted countries are majority Muslim and the Order fails to provide evidence that nationals of the six countries pose a threat to national security.

As the rules can change at any time, it is critical that you consistently check with reliable sources (ie: not chat rooms or random google searches) for updates and developments before making any travel decisions, applying for visas, or booking foreign artists. We recommend:

1) www.artistsfromabroad.org

2) The USCIS website: www.uscis.gov

3) The US Department of State website: www.travel.state.gov

4) The US Customs and Border Patrol website: www.cbp.gov

5) The American Immigration Lawyers Association (www.aila.org)  

___________________________________________________________________

For additional information and resources on this and other legal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to:

lawanddisorder@musicalamerica.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 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!

 

 

 

 

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Posted in Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

What In The World Is Going On As Of February 2, 2017?

Wednesday, February 1st, 2017

By Brian Taylor Goldstein, Esq.   

On January 30, 2017 we posted an update to clarify what was going on (at least as of Sunday, January 29, 2017) with regard to President Voldemort’s now infamous January 27, 2017 Executive Order and how it impacts the arts. As you may imagine, as the result of lawsuits and procedural confusion, the situation continues to develop…often hourly. As our office continues to address issues and implications on the front lines, we are relying upon the American Immigration Lawyers Association, The League of American Orchestras, the US Performing Arts Task Force, and other vital organizations who continue to monitor and report on the situation at all levels.

While there are still more questions than answers, the situation is starting to normalize somewhat…until they change. Nonetheless, as of today, here are the most accurate answers to the most frequently asked questions:

Does President Voldemort’s Executive Order and travel ban apply to Citizens of the 7 countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen) who also hold US Visas or Green Cards?

  • Yes.
  • The Department of State has indicated that it is “provisionally” (ie: temporarily) revoking all visas and green cards for nationals from the 7 countries named in the January 27 Executive Order.
  • This does not affect visa holders or green card holders who are currently in the US. They can stay.
  • If a green card holder was out of the US as of January 27, 2017 or travels out of the US after January 27, 2017 and attempts to return, then such individuals ARE subject to the travel ban. However, green card holders are eligible for national interest waivers consistent with the provisions of the Executive Order. According to the Executive Order, absent significant derogatory information indicating a serious threat to public safety and welfare, green card status will be a dispositive factor in case-by-case determinations of whether or not a green card holder may re-enter.
  • So far, only two green card holders from the list of 7 countries have been denied entry: One, who was denied based on a criminal record, and another individual chose to return to Canada and withdrew his request for entry.
  • If a visa holder was out of the US as of January 27, 2017 or travels out of the country after January 27, 2017, they will not be allowed to re-enter at this time.

Does President Voldemort’s Executive Order and travel also apply to students who are citizens of the 7 countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen)?  

  •  Yes.
  • F1/J1/M1 visas are currently temporarily suspended. Individuals who were in the US at the time of the signing of the executive order are not affected by the order.
  • Students who were out of the US as of January 27, 2017 or travel out of the US after January 27, 2017 and attempt to return will not be allowed to return at this time. The Department of State is evaluating whether those who are precluded from returning as a result of the Executive Order will be considered to have maintained their status as F1 or M1 students.

Does President Voldemort’s Executive Order and travel ban apply to individuals who are citizens of the 7 countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen) but who also are citizens of other countries (ie: dual citizens)?

  • No.
  • Travelers are being treated according to the passport they present at the time of entry into the US. For example, if they hold both Iranian and Canadian passports, then, absent significant derogatory information indicating a serious threat to public safety and welfare, they WILL be allowed to enter.
  • However, if an individual holds a visa, the visa stamp MUST be in a passport that is not from one of the 7 countries. For example, if an artist with an O-1 holds both Iranian and UK passports, the O-1 visa must be in the UK passport.

Does President Voldemort’s Executive Order and travel ban apply to individuals who may have been born in one of the 7 countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen), but who are no longer citizens?

  •  No.
  • However, individuals who were born in these and other countries considered to be “at risk”, or still have relatives in these countries, have always been subject to additional security processing and delays at US consulates and upon entry to the US. This will continue.

Does President Voldemort’s Executive Order and travel ban apply to individuals who may have been merely visited or performed in one of the 7 countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen)?

  •  No.
  • However, individuals who have visited these and other countries considered to be “at risk”, have always been subject to additional security processing and delays at US consulates and upon entry to the US. This will continue.

What is the impact of this on artists and individuals from other countries?

  • So far, none.
  • They will be subject to the same inconstant policies and tortuously interpreted regulations as always.

What is the impact of this on USCIS or the processing times at USCIS Service Centers?

  • So far, none.
  • Both USICS Service Centers continue to suffer from high staff turnover and lack of funding. This continues to result in longer processing times and an increase in Requests for Evidence (RFE).
  • While the California Service Center “tends” to process petitions more quickly than the Vermont Service Center, we continue to advice clients to anticipate standard processing to take 3 – 4 months at both service centers. Do not rely on the anecdotal information of others to the contrary!

What is going to happen next?

  •  Who the hell knows? However, according to two “leaked” provisional/proposed Executive Orders, here’s what we anticipate:
    • Further restrictions and clarifications on the limitations of B-1/B-2 (visitor/business) visas and those eligible to enter on visa waivers (Ie: ESTA) with respect to what they can and cannot do in such status. We’ve have said this 1000 times, but we keep getting questions about this: Artists cannot perform on visitor visas and/or on ESTA status. Not for free. Not for education. Not for schools. Not for training. Not if no tickets are sold. Not no way! Not no how! If any US manager, agent, presenter, venue, or academic institutions tells you otherwise—RUN AWAY!
    • Additional restrictions and oversight of students eligible for “practical training” during or after their course of study.
    • Additional countries being added to the list of banned nationalities.

Lastly, because the situation can change at any time, it is critical that you consistently check with reliable sources for updates and developments before making any travel decisions, applying for visas, or booking foreign artists. We strongly recommend:

1) www.artistsfromabroad.org

2) The USCIS website: www.uscis.gov

3) The US Department of State website: www.travel.state.gov

4) The US Customs and Border Patrol website: www.cbp.gov

5) Licensed immigration attorneys

 ________________________________________________________________

For additional information and resources on this and other legal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.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 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!

 

 

 

 

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Posted in Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

WHAT IN THE WORLD IS GOING ON?

Sunday, January 29th, 2017
By Brian Taylor Goldstein, Esq.

Except for those of you who may have been exploring other dimensions for the past few days, almost everyone else on the planet has been following the flurry of recent developments in the US as our country falls into the slipstream of chaos. We felt it was important to clarify exactly what is going on (at least as of Sunday, January 29, 2017) and how it impacts the arts.

On January 27, 2017, Dictator-in-Chief Trump signed an Executive Order that, among other provisions, immediately “suspends” the immigrant (“green card”) and nonimmigrant (Os, Ps, Fs, Hs, etc.) entry of citizens from the following countries for 90 days from January 27, 2017: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Artists from these countries will not be able to enter the US, including those artists who already possess an I-797 Approval Notice or even who have already been issued an actual visa. As of January 29, 2017, those holding green cards may, in theory, re-enter the U.S., but they, too, should expect additional scrutiny, delays, and possible refusals.

It should be noted that the travel ban will not automatically be lifted after the 90 days.

Also, this order not only applies to anyone who holds a passport from any of the 7 designated countries, but also to dual citizens who hold passports from a designated country, as well as a non-designated country. So, for example, if an artist were to hold BOTH an EU passport as well as an Iraqi passport, that artist would be subject to the bar. “Theoretically, dual nationals holding US citizenship remain able to re-enter the U.S., but they should expect additional scrutiny and delays as well.

It is unclear whether or not the travel ban applies to people who are former citizens of the 7 countries or who may have merely traveled to one of these countries. However, they should expect additional scrutiny and delays as well.

Additional changes to the visa rules, regulations, and restrictions have been threatened in the upcoming weeks. However, the expectation is that most of these will apply to H-1B visas (employees with specialized skills and academic degrees), which rarely, if ever, apply to artists and F visas (students), which will apply to artists attending school and training programs in the US. We would also not be surprised if Dictator Trump eventually slams the door again on Cubans, as well.

For now, aside from those artists impacted directly and immediately, everyone else should take a breath and keep the following in mind:

1) Do not panic!

We’re all doing that for you!

 2) Stop relying on ESTA

There is going to be even more scrutiny and less forgiveness that ever before with regard to artists attempting to enter the US on visitor visas (B-1/B-2) and/or ESTA status. We’ve have said this 1000 times, but we keep getting questions about this: Artists cannot perform on visitor visas and/or on ESTA status. Not for free. Not for education. Not for schools. Not for training. Not if no tickets are sold. Not no way! Not no how! If any US manager, agent, presenter, venue, or academic institutions tells you otherwise—RUN AWAY!

 3) Plan ahead. This has always been important, but now it has become critical. In other words, don’t schedule any quick connecting flights or wait until the last minute to file visa petitions and schedule consulate interviews.

Lastly, because the situation can change at any time, it is critical that you consistently check with reliable sources for updates and developments before making any travel decisions, applying for visas, or booking foreign artists. We strongly recommend:

1) www.artistsfromabroad.org

2) The USCIS website: www.uscis.gov

3) The US Department of State website: www.travel.state.gov

4) Licensed immigration attorneys

_________________________________________________________________

For additional information and resources on this and other legal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.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 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!

 

 

 

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Posted in Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

Is It Still Illegal If I Don’t Get Caught?

Thursday, April 9th, 2015

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

Our organization has engaged a foreign musician whose European agent is balking at the artist having to obtain an O-1 visa that we know he needs. We want to do this right, so I’m getting my ducks in line to tell him no and part of making that case is knowing what potential penalties the organization might face for allowing him to work without the proper visa. I hope there is an easy answer that you can give me off the top of your head—or maybe there is something you can refer me to that would provide the answer.

A lot of artists and their managers balk at the U.S. visa process for artists. I understand. It’s illogical, inane, impractical, unpredictable, arbitrary, and expensive…and those are just the high points. Nonetheless, it’s the one we’re stuck with.

The “easy answer” is simply that “it’s illegal.” Artists are not permitted to perform in the U.S. without an artist visa (most often, either an O or P), regardless of whether or not tickets are sold, regardless of whether or not the artist is paid or who pays the artist, regardless of whether or not the performance is for a 501(c)(3), regardless of whether or not the performance constitutes “training” or is “educational”, and regardless of just about any scenario you can conceive of. What you are really asking is: what are the consequences for breaking the law and what are the odds of getting caught?

Both United States Citizenship and Immigration Services (USCIS) and United States Customs and Border Patrol (USCBP) have been increasingly scrutinizing artists over the last year or so. As a result, artists who have previously managed to perform illegally in the U.S. in the past without the proper artist visa are now being caught with ever greater regularity—resulting in significant consequences for both the artists as well as the presenters and venues who allowed them to perform. Last year, a violinist who had been performing in the U.S. for the past five years without a visa was caught and is now banned from the U.S. for three years. I am aware of a conductor who was turned away at the border when the immigration official discovered that he was coming to perform by “googling” his name. Another artist was advised by his management to enter the U.S. on a visitor visa to perform a promotional tour for a new album, was detained at the airport for 5 hours, and then refused entry. His ESTA/Visa Waiver privileges have been revoked and he must now visit a U.S. Consulate any time he wants to enter the US—even as a visitor. Even more significantly, a management company was caught submitting a fraudulent visa petition to USCIS and is no longer allowed to serve as a petitioner for its own artist’s visas. Large presenters, venues, and festivals are being audited with increasing regularity to determine whether or not all artists have proper artist visas.

The consequences for employing an artist illegally are the same as for any employer who employs an illegal alien. Theoretically, this can include anything from fines and economic penalties to criminal prosecution. However, from a practical perspective, the Department of Homeland Security and Department of Justice lack the resources to prosecute and investigate every venue or presenter who facilitates an illegal performance. This is why most enforcement tends to be focused on the artist at the time of entry. After the artist has entered the U.S., it’s much less likely that DHS would discover the performance unless there is an audit or the performance is reported to them. Audits are much more likely to occur either in the case of larger institutions or employers who already employ foreign workers in other capacities or in the case of prominent or significant venues or performances which are more likely to garner media attention.

In short, whenever a venue contemplates employing an artist without a proper visa or an artist contemplates performing with a proper visa, it’s akin to running a red light. It’s illegal under any circumstances. Whether or not you get caught depends on whether or not there is a camera or cop at the intersection. Whether or not it’s advisable depends on the circumstances and how lucky you feel.

If cost and inconvenience is a factor, and the artist has other U.S. engagements, a potential solution might be an itinerary-based visa covering multiple engagements. I am increasingly and puzzlingly seeing artists obtaining multiple visas rather than coordinating them amongst all of the artist’s presenters. There is no reason for this other than the visa process being all too often delegated to the “new kid” in the office.

__________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook legal, project management, 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, management, 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.

__________________________________________________________________

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!

 

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Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Presenters, Touring, Visas | Comments Closed

Is There A Showcase Visa Exception?

Thursday, December 4th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

We have arranged for one of our foreign groups to perform a showcase at the upcoming APAP conference in New York. Will they need artist visas? Obviously, we’d like to avoid that time and expense. The artists are all from Europe and could enter as visitors under ESTA. Couldn’t we just say that the performance is intended to educate presenters and the US market about the group and is, thus, “educational”?

Nice try. Please see the bailiff on the way out to make arrangements to pay your fines and penalties. While visitors to the US are permitted to attend seminars or engage in “short courses of study”, the education must be for the benefit of the visitor, not the audience. When traveling through the demented kingdom of US arts immigration, never take a circuitous route through the fire swamp of cute arguments and clever schemes on the rare occasion when a straightforward path may actually present itself.

The official rule is and has always been that artists cannot perform in visitor status (which means either entry with an actual visitor visa or entry through the visa-waiver/ESTA programme.)  If an artist performs in the US (and does not have either a student (F) visa approved for “practical training” or a similar training-based visa such as a J or M), then the artist must have either an O or P visa. It doesn’t matter if the artist isn’t being paid. It doesn’t matter if tickets are free. It doesn’t matter if the audience is enthralled, inspired, impoverished, infirmed, intoxicated, or indifferent. Any performance in front of an audience triggers the need for an O or P visa.

HOWEVER, an artist IS allowed to enter the US in visitor and/or ESTA status and perform if the performance constitutes an “audition.” Several years ago, USCIS clarified that “showcases” at official booking conferences such as Arts Midwest, APAP, etc. could qualify for this exception provided certain conditions were met:

(1) The showcase cannot be open to the public (regardless of whether or not tickets are sold or free);

(2) The performance can only be for the benefit of registered conference attendees; and

(3) The artist(s) cannot engage in any other performances while in the US.

So, if your showcase is of the variety that are held in one of the ersatz performance spaces at the Hilton and open only to official, registered conference attendees with official, multi-beribboned badges, then you are in luck. On the other hand, if your showcase is of the kind that are held around New York City in an actual performance space where the general public will be attending, but APAP conference registrants can come for free, then your artists will need O or P visas. In other words, its not enough merely to call a performance a showcase—it must be an APAP-only showcase or it doesn’t count.

If you believe that your artists qualify for the showcase/audition exception, then I would still strongly recommend that each artist travels and enters the US with a signed letter from you, on your official letterhead, confirming their entry and departure dates and confirming that all of the above-conditions are met.

__________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook 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.

__________________________________________________________________

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!

 

 

 

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Posted in Artist Management, Law and Disorder: Performing Arts Division, Visas | Comments Closed

Too Fast and Furious To Get A Visa!

Thursday, February 20th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

We filed a P-1 petition for an orchestra that is to perform at our venue. The petition was approved and it includes the orchestra’s conductor. However, the conductor just informed us that he does not want to go the consulate and apply for his P-1 visa (he says he just doesn’t have time for such an inconvenience.). Instead, he wants to enter as a visitor on the ESTA/Visa Waiver Program. He claims he did this when the orchestra toured the United States last year, including performing at our venue, and there was no problem, so he wants to do it again. We never realized he performed for us last year as a visitor. Are we in trouble? What if he insists on doing this again this season? What are the risks for us and for him?

Unless this is the conductor of the Hogwarts Symphony Orchestra, he seems to be laboring under the misbelief that he can waive his magic baton and dismiss anything he finds unpleasant, inconvenient, or displeasing. If only that were true.

Your situation presents several problems, the first and most immediate being that, under U.S. Immigration Law (however, inane we may all agree it is), an artist is not allowed to perform in the U.S. while on a visitor visa. Regardless of whether or not tickets are sold and regardless of whether or not the artist is paid in the U.S. or abroad (or even if the artist performs for free), no performance activities are permitted while an artist is in visitor status. Unless an artist has been admitted on an O or P visa, or has been admitted in some other applicable work authorized classification, any performances are illegal.

Technically, as the presenter/venue, you are supposed to verify the work authorization of each artist who performs for you. Had the conductor presented his visa (or lack thereof) to you last season, it would have quickly been discovered that he was not authorized to perform.  On the slim chance you were ever audited for immigration compliance, your venue could be found to have violated U.S. Immigration law by facilitating the illegal performance of a non-U.S. artist without proper work authorization. Penalties could range from fines to the greater scrutiny of future visa petitions.

I understand that, in this case, the conductor in question was able to enter the U.S on the ESTA program, perform, and leave without issue. He was lucky….and so were you. While I can see the temptation to try the same deception again, especially for a busy conductor who does not want to make a trip to a U.S. Consulate, such luck cannot continue indefinitely.

While U.S. Consular Officers and U.S. Customs and Border Protection Officers are as vigilant as possible, they cannot catch every violator on every occasion. The situation is much like running a red light, or committing any other criminal or penal violation, without getting caught. The lack of an arrest does not make the crime any less illegal. In this case, however, the penalties for an immigration violation can be more severe than a mere traffic ticket.

For an artist, presenting oneself at the border and asking for admission as a visitor, when the artist, in fact, intends to perform illegally constitutes a fraudulent misrepresentation to a federal law enforcement officer and constitutes a felony. If caught, the artist can be subject to immediate deportation as well as restrictions on future travel, visas, and work authorization. While I am familiar with many Non-U.S. artists who have managed to sneak in and out and perform as visitors on various occasions, I am also familiar with many who have been caught, even after years of being undetected.

In one case in particular, an internationally known artist who had held multiple O-1 visas over the course of his career, found himself with an approved O-1 petition, but unable to find the time to travel to a U.S. Consulate for an interview and to receive a physical O-1 visa. Instead, he entered as a visitor. Much to the dismay of him and his management, he was discovered. Because of his notoriety and international standing, he was not deported. However, because of his attempted fraudulent entry, his visitor privileges were revoked and for the next six years he was required to seek a “waiver of inadmissibility” every time he went to a U.S. Consulate to apply for a visa. Such a waiver adds an extra 2 – 3 weeks of processing time to the issuance of a visa.

I am also familiar with a management company whose future immigration petitions have been consistently flagged for extra review and processing when it was discovered that there were knowingly assisting artists in filing deception P-1 petitions.

As you can see, I would strongly advise the conductor that the immediate temptation of avoiding the time and hassle of a trip to the consulate is outweighed by the potential loss of his ability to travel and work in the U.S. Ultimately, if he decides to continue running the red light on the assumption that he won’t get caught, you and your venue should not be required to go joy riding with him.

_________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook 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.

__________________________________________________________________

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!

 

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Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

Beware of Simple Answers!

Thursday, December 19th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

I work with an artist whose current US visa expires in January 2014, but he has one engagement in the US on March 8, 2014. The promoters are saying that he won’t need to renew his visa and can just use ESTA, however, we were under the impression that he would need a valid US visa. Is this correct?

You are absolutely correct. He will require an O-1 visa.

ESTA stands for “Electronic System for Travel Authorization.” ESTA is an on-line registration system for citizens of countries who participate in the United States Visa Waiver Program (“VWP”). Citizens of VWP countries are not required to visit a US consulate and apply for physical visitor visa (B-1/B-2) to enter the US as visitors. Instead, they are only required to have a valid passport from a VWP country. However, they are required to register on-line through ESTA and be pre-authorized before they can enter the US.

The key, of course, is that the VWP program only allows citizens of VWP countries to enter the US as “visitors.” As such, they can only engage in visitor permitted activities: shopping, sightseeing, business meetings, etc. Under US Immigration Law (frustrating and circuitous though it may be), professional artists who enter the US as visitors are not permitted to engage in ANY public performances–regardless of whether or not an artist is paid, regardless of whether or not tickets are sold, regardless of whether or not the performances is for a benefit or a gala, regardless of whether or not the performance is for a university or non-profit, regardless of whether or not you can afford the visa process, regardless of whether or not the artist lives 100s of miles from the nearest US consulate, regardless of whether or not the artist has previously performed in the US as a visitor, etc, etc.

While artists frequently do sneak in as visitors and perform, this poses far more risk to the artist than to the venue or promoter. If the artist is caught, the worst that happens to the promoter or venue is that the artist can’t enter the US and the concert may have to be cancelled. However, a fraudulent VWP/ESTA entry can result in the artist having his VWP privileges revoked, or worse.

I am currently working with a prominent artist who wanted to take a last minute engagement, didn’t have time to petition for a visa, much less go to the consulate, and decided to enter the US as a visitor. Unfortunately, his concert had been prominently advertised, he was caught by the one of the few border officers who actually follow classical music, and was refused entry. For the next five years, the artist must now formally request a “waiver” anytime he wants to obtain a proper O-1 visa to perform in the US. As you may imagine, this has caused considerable stress to his management because a “waiver” request adds an additional 3 – 4 week delay in processing the artist’s visa. In addition, his VWP privileges were revoked, meaning that he must go through the time and hassle of applying for a formal B-1/B-2 visitor visa even if he legitimately only wants to enter the US as a visitor.

I doubt seriously that the promoter was intentionally giving bad advice. More than likely, the promoter was ill-informed. Which only underscores the responsibility of each of us to take the time to learn and figure out the correct answers for ourselves rather than rely on hearsay or anecdotal information. Whether you’re dealing with visas, taxes, licenses, or liability, if the answer seems too simple, it probably is.

________________________________________________________________

Hi Everyone! “Law and Disorder: Entertainment Division” will be taking a holiday break. Our next post will be on January 8, 2014. Many thanks for a wonderful year of great questions and challenges. Keep them coming! 

OFFICIAL HOLIDAY WISH CONVEYANCE

From Brian Taylor Goldstein and Robyn Guilliams (collectively, the “Wishor”) to you (“Wishee”):  

Please accept without obligation, implied or implicit, and weather permitting, our non-assignable and non-exclusive best wishes for a sold out, standing room only, royalty abundant, lavishly licensed, critically acclaimed, non-cancelable, infringement free, profusely booked, copiously commissioned, richly funded, tax-exempt, crisis deficient, and artistically inspired celebration of the winter solstice holiday, practiced within the most enjoyable traditions of the religious and/or secular persuasions of your choice, including their choice not to practice any such religious or secular traditions, along with an environmentally conscious, socially responsible, spiritually enlightened, politically correct, low stress, low carb, high HDL, non-addictive, financially successful, personally fulfilling, and medically uncomplicated recognition of the onset of the generally accepted calendar year 2014, but with due respect for the calendars of choice of other cultures or sects, and without regard to the race, creed, color, age, physical ability, religious faith, choice of computer platform or operating system, mental and/or physical incapacities, visa classification period, sexual preferences, political affiliations, and/or dietary preferences of the Wishee.

_________________________________________________________________

For additional information and resources on this and other GG_logo_for-facebooklegal 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.

__________________________________________________________________

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!

 

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Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

Visas for Recording Artists

Wednesday, September 25th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

If a foreign singer (who is not a citizen of a country that is eligible for the visa waiver program) gets a record deal in the USA, what kind of visa would they need to apply for? And if the singer is currently living in a different country with a residency permit, can they apply in that country where he or she is living, or would they need to return to their own country to apply for the visa? Thanks.

Thanks. This is an easy one.

To work in the US, which includes entering the US for the purposes of recording an album (regardless of whether or not the singer is paid), the singer would need to apply for an O-1B visa. An O-1B visa is for individual artists of “extraordinary ability.” To obtain the visa, a US-based petitioner (which could be the record label or an appointed agent) would need to prepare and file a visa petition with United States Citizenship and Immigration Services (USCIS). (Naturally, there are fees and costs to file the petition.)

Once the visa petition is approved, USCIS will issue an “approval notice.” The singer will need that to make an appointment at a US Consulate and schedule a visa interview. He or she will need to complete an on-line application form and pay a visa application fee. However, the singer can go to any US Consulate in the world that is convenient for him or her. He or she does not have to return to their home country or even use the consulate in the country where they are a living. Any consulate in any country with a US flag outside will work. (Just make sure it’s a consulate that issues visas—not all do.) Assuming there are no problems with the background check, and assuming the singer is not from a country the US doesn’t like (which, sadly, is a larger list than you may think), the visa should be issued in 3 or 4 days.

There is a rare exception you should be aware of which may or may not be applicable. An artist is not required to have an artist visa to enter the US for the sole purpose of using a recording studio to record an album that will not be sold or distributed in the US, and provided there will be no public performances or concerts. If this applies, an artist only needs to have a visitor visa (unless they are citizen of a visa waiver country, in which case, they will only need their passport to enter as a visitor for up to 90-days.)

Remember, everything you could possibly want to know about visa and tax issues for foreign artists wishing to perform in the US, including things you didn’t even know you needed to know, can be found on: www.artistsfromabroad.org

__________________________________________________________________

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.

__________________________________________________________________

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!

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Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

Showcasing: A Rare Visa Exception

Wednesday, August 28th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder

Do non-US artists need artist visas when they come in to perform a showcase at a booking conference? They don’t get paid. Its just to get bookings. In fact, the artists lose money doing this. Can they enter on a tourist visa or do they have to spend even more money and go through the process of getting an artist visa?

Its rare that someone asks us an immigration question where they actually might like the answer…this may be one of those instances.

However, its first always worth remembering that, under current U.S. immigration law, whether or not a foreign artist is required to have an artist visa (almost always either an O or a P) is not related to payment. What triggers the need for an artist visa is performance. Whether or not an artist is paid, whether or not tickets are sold, whether or not the performance is public or private, whether or not the performance is for a non-profit educational or a cultural organization, if an artist performs, and there is someone watching the performance, he or she is required to have an appropriate artist visa.

Except for rare and limited exceptions, an artist can never perform on a visitor visa or, if applicable, under the visa waiver program. One exception is a competition. An artist is not required to have an artist visa if the artist is coming to the U.S. for the sole purpose of participating in a competition where there is no payment other than expenses and a prize, monetary or otherwise. Another exception is an audition. An artist is not required to have an artist visa if the artist is coming to the U.S. for the sole purpose of auditioning or meeting with producers or presenters in the hopes of being hired to perform in the future.

While there is no official codification of a showcase being regarded as an audition, the U.S. State Department in conjunction with U.S. Citizenship and Immigration Services have long taken the position that a showcase is regarded as an audition if it meets the following criteria: The showcase is not open to the public, no tickets are sold or available, attendance is open only to registered members of the booking conference, and the artists are not paid and are responsible for their own expenses. Also, the artist cannot perform any other engagements in the U.S. while on the same trip. In other words, they need to get in, perform the showcase, and get out. If these criteria are met, then an artist may enter the U.S. and perform at the showcase on a visitor visa or, if applicable, a passport issued by a “visa-waiver” country.

Be forewarned: simply calling a performance a “showcase” is not sufficient. Nice try, but that won’t work. If an artist books a venue, sells tickets or otherwise makes tickets available to the public, but allows booking conference attendees to attend free, that is NOT a showcase for purposes of the artist visa exception and the artist will be required to have an appropriate artist visa. Similarly, booking an engagement with a low fee simply because the artist or the artist’s agent/manager believes such engagement will be an opportunity to showcase or introduce the artist’s talents to the U.S. market in the hopes of getting future bookings is also NOT a showcase.

If you believe that you or an artist you represent may qualify for the showcase exception, then, if the artist is traveling on a passport from a “visa waiver” country, he or she needs to travel with a letter from the artist’s agent/manager or, even better, from the booking conference itself, confirming that all the elements of the exception are met. If the artist is traveling on a passport from a “non-visa waiver” country, then he or she will need to apply for a visitor visa at a U.S. consulate, but should bring the appropriate letter with them explaining that the showcase exception applies.

__________________________________________________________________

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.

__________________________________________________________________

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!

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Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

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