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The Story of O (and P)
By Jonathan Ginsburg
September 27, 2012
As a sleepy associate at a D.C. law firm one morning 21 years ago, I’d been unable to duck an assignment involving “immigration law,”
The Lonely Goatherd
I was no great expert myself. Up till then, the U.S. immigration process had been informal, with problems resolved in phone calls or meetings between the petitioning entity and immigration personnel. Similarly, U.S. consulates were far more approachable than they are now. Guided by French and Marc Scorca, still president and CEO of OPERA America, and ably assisted by Rick Swartz, a professional strategist on public policy issues, including immigration, I went to work untangling the knots and double knots our government had wrought.
A Meeting with the Senator’s Office
I was skeptical about that response: Immigration and Naturalization Service (legacy INS, now USCIS) had by 1990 begun consulting with organized labor—the Hollywood unions in particular—on whether particular foreign performers were indeed of distinguished merit and ability. I suspected that Congress had passed the new law in response to organized labor’s request. Still, Tinker knew that the unions would have to be part of the solution, lest they prevent one altogether. Tinker then confessed that neither he nor the Senator had been aware of the O and P provisions before the Senate passed the new law, but, he said, he had a simple plan: Golodner and I were to walk out the door and return only when we had a deal acceptable to all concerned, at which point the Senator would make sure the deal became law.
Two Coalitions Too Many
Nine months of meetings and negotiations followed, and I spent more time herding my arts-related cats than meeting with Golodner. The former had two very understandable problems: they knew virtually nothing about immigration law and procedure, and they distrusted organized labor. This meant that, while I was bringing the arts-related coalition up to speed on immigration law, I had to negotiate with Golodner simply to come up with concepts and talking points I could use to illustrate the problems and possible solutions to my own coalition members. I suspect Golodner was doing the same on his side.
The Consensus, the Bill, the Law
True to his word, Senator Kennedy introduced a bill containing the compromise the two coalitions had wrought. The bill did something exceedingly unusual by today’s sorry standards: it attracted the support of a large majority of both political parties. Before it could become law though, the bill itself had to be stitched word by word, line by line, into the existing Immigration and Nationality Act. For that purpose, a marvelous staff attorney and technician on the House side and I spent hours on the phone late at night going line by line through the language, trying to ensure that the technical effects of the bill would be as the two coalitions—and Congress—intended.
On December 12, 1991, President Bush signed into law the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, containing the O and P provisions as we now know them. The essential compromise was that the revised law required only that artists have “distinction,” a defined term that effectively reinstated the lower “distinguished merit and ability” standard of the old law. Also, the new standards for performance groups and culturally unique performers and groups were adjusted, primarily to discourage importation of foreign productions not associated with a particular group.
In return, organized labor got a seat at the table, so that it would have a chance to see and opine with respect to most arts-related petitions. Until the Immigration Act of 1990, the U.S. immigration process had been informal, with problems resolved in phone calls or meetings between the petitioning entity and immigration personnel. Little did we anticipate then that, whatever else they may have gained, the arts-related unions also gained the potential for a revenue stream. While none of the unions initially charged for the newly required “advisory opinions,” today it can cost as much as $500 simply to obtain a letter stating that the union does not object to the petition!
The next step, too, went relatively smoothly, in that the U.S. Immigration and Naturalization Service (legacy INS, now USCIS) reached out to the coalition members, solicited their views, then produced a workable set of interim regulations on April 9, 1992, just after the current O and P provisions took effect. I range from sentimental to maudlin as I recall that all this happened without anti-immigrant sentiment or the intervention of PACs, super PACs, 501(c)(4)s, or Las Vegas billionaires.
Off the Page and Into the Fray
The agency/petitioner responded entirely logically: the agency’s head got the head of another agency in the adjacent office to write a letter singing the praises of the opera company in question. Why not? After all, the statute seemed to say that the advisory opinion could come from a union, so that meant it did not have to come from a union, right? “Wrong,” said legacy INS. The tour was to begin the following week; I got the call on a Tuesday evening.
It happens that I had been planning to go to New York City the next day anyway, so I told the frantic client I would be at his office first thing in the morning. We spent several hours redoing the petition, we obtained an advisory opinion from AGMA that afternoon, I took the papers the next day to my own local legacyINS office, and filed them using an emergency procedure no longer available. Friday morning, after I spent some time on the phone with an officer from the Vermont Service Center, Vermont cabled its approval to the U.S. Embassy in Rome. By then, my client had contacted the Vatican, which had contacted the Embassy, which, in turn, sent a consular officer to the company’s dress rehearsal, where he issued the visas. The company members flew to the U.S. that Sunday, rehearsed Monday and began performing Tuesday. Now that was close.
If you need to bring an artist in from abroad, my best advice to you is to visit Artists from Abroad and plan as far ahead as possible. This way, if and when you encounter the inconsistencies and occasional outrages perpetrated by USCIS and, once in a while, the Department of State, you might at least have some time to deal with the problem.
Jonathan Ginsburg, of Fettmann Ginsburg PC, in Fairfax,VA, a full-time immigration lawyer, specializes in arts- and entertainment-related immigration, including temporary work-related O and P visas, permanent residence, and related consular matters. Author of the immigrationrelated portion of Artists from Abroad, he may be reached at email@example.com.
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