Consulting A Perfect Union

Everyone knows—or should know—that in preparing and filing visa petitions for artists or ensembles to enter and perform in the United States one falls through the looking glass into a world of upside down logic and superfluous steps. However, just when you smugly believe you have deduced the path, you encounter additional requirements lurking in the shadows which take you by surprise. Among them is that US immigration law requires that every petition for an O or P visa to include “proof of consultation” from an applicable labor union in the field of the artist, ensemble, and support staff listed on the petition. Such “proof” can consist of either a simple written “no objection” letter from the union or a more elaborate written “advisory opinion” letter in which that union explains why it supports the visa petition or objects to the visa petition. Generally, these are known as “Consultation Letters.”
While the specific procedure for obtaining such letters can vary from union to union, the procedure most often involves submitting a consultation request to the union, along with a draft of the petition forms and copies of the supporting materials. USCIS keeps its own list of which labor unions it believes are the ones applicable to certain artistic genres and services. While USCIS does not share its list, the most reliable list can be found on www.artistsfromabroad.org.

For instrumentalists, non-opera singers, non-opera conductors, and non-opera music directors, this means sending a consultation request to the American Federation of Musicians (AFM). Consultation requests on behalf of visas for opera singers, dancers of all genres, choreographers, and musicians performing with singers and/or dancers go to the American Guild of Musical Artists (AGMA). Stage actors and theatrical stage managers are subject to Actors Equity Association (AEA); stage directors and choreographers go to the Society of Directors and Choreographers (SDC); and production and technical crew (light, sound, costumes, etc.) are covered by the International Alliance of Theatrical Stage Employees. Even visa petitions on behalf of tour managers, producers, coaches, publicity and development staff, and other artistic and administrative personnel must include a Consultation Letter from a union—even where there are no official unions for such positions. Fortunately, the American Guild of Musical Artists (AGMA) will provide consultation letters for such positions.

Understandably, this raises a number of questions. Fortunately, they all have relatively straightforward answers:

- Do you have to obtain a Consultation Letter even where the artist or ensemble will not be performing under union contracts or are not union members? Yes.
- Does this require an artist to join a union or become a union member? No.
- Does this require the artist or ensemble to be employed or engaged under a union contract? No.
- Do the unions charge a free for providing such letters? In most cases, yes. And, like USCIS, the more you pay, the more quickly you will receive your letter.
- Do unions ever issue objections? Not usually, but occasionally if the union feels the artist or ensemble is being hired under unfair terms or are otherwise truly unqualified.
- If a union objects, do we get our money back? Not in this lifetime.

In order to avoid paying a union consultation fee, or avoid having to involve a union altogether, many artist managers and other “visa petition preparers” will seek a consultation letter from a more receptive (and often cheaper) “peer group” as opposed to a union. Such peer groups are typically industry support organizations that work within and on behalf of a specific genre, such as Opera America, the League of American Orchestras, Chamber Music America, Theatre Communications Group. However, this practice is based on a misreading—or, to be more accurate, an incomplete reading—of US immigration law. Most often, a person wishing to submit a Consultation Letter from a peer group in lieu of a union will point to a portion of the US immigration regulations which provide that a Consultation Letter can come from either a union or a peer group. However, if you keep reading, you will find that the regulations further clarify that USCIS will accept a Consultation Letter from a peer group only in cases where either (1) there is no labor union or (2) the labor union refuses to respond. Admittedly, USCIS is not always consistent in the interpretation of its own regulations and there are considerable instances where USCIS has approved a visa petition where only a Consultation Letter from a peer group has been provided. However, USCIS is not bound by its own past custom and practices, regardless of how long they may have been in place, and exceptions and even mistakes on behalf of USCIS do not change the rules. This means that, at any time, USCIS is free to insist upon strict adherence to the official requirements—and this is exactly what has recently been happening. In recent years, USCIS has been rejecting petitions where only Consultation Letters from peer groups have been provided and insisting on Consultation Letters from a labor union. This can cause considerable delay while you obtain the correct Consultation Letter and then re-submit the visa petition to USCIS.

In short, unless you are filing a visa petition far enough in advance (which, these days, means over 6 months) one should only rely on a Consultation Letter from a peer group when a labor union does not exist or when you have sufficient time to obtain a letter from a union if USCIS rejects the letter from a peer group. You can also use a peer letter on those rare occasions when a union responds with an objection. We’ll address this next month!  

Remember, you can always find more information on our website: www.ggartslaw.com. And if there’s something in particular you want to know about, be sure to let us know!

Brian Taylor Goldstein and Robyn Guilliams are the founding partners of GG Arts Law, a New York-based entertainment law firm, as well as Managing Directors of Goldstein Guilliams International, through which they provide comprehensive business, project and tour management, and legal services exclusively to the international performing arts and entertainment community. Brian has twice been recognized as one of New York's "Super Lawyers" in the fields of Entertainment, Intellectual Property and Immigration in The New York Times and is a well-known speaker and author on arts and artist management. Robyn is an internationally recognized specialist in foreign artist taxation and artist business matters, as well as a Co-Author of Artistsfromabroad.org, with an impressive past career in arts administration and management at major venues and arts organizations.

THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. One size never fits all. Circumstances and solutions can, and do, vary. Please consult with a professional—legal, medical, or otherwise—familiar with your specific 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, quoting us out of context, or doing anything rash!
Author: Brian Taylor Goldstein and Robyn Guilliams
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