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Recent Updates on US Visas for Artists

While we’ve been trying to give everyone a respite from depressing news and updates with regard to the process of obtaining US visas for artists, there are been some recent developments which you nevertheless should be aware of….

1. BEWARE OF THE LONDON CONSULATE!

We have recently been getting significant reports that the US Consulate in London, which is part of the US Department of State, is refusing to issue O-1 visas even though an artist’s petition for an O-1 visa was approved by United States Citizenship and Immigration Services (USCIS), which is part of the US Department of Homeland Security. In some cases, the London Consulate is actually contacting USCIS and recommending that the O-1 petition be re-reviewed and the approval revoked!

The culprit behind this development appears to be the newly appointed Chief of the Non-Immigrant Visa Division at the London consulate. In response to questions about this new trend, he is purported to have claimed that the London Consulate has determined that a large number of O-1 petitions contain "purposeful misrepresentation of credentials." The Visa Chief further contends that O-1 artists should be “household names” and be in the top 1-3% of the field. (This is absolutely wrong in every possible way that something can be wrong!). As result, he has ordered his staff to review the visa petitions of first and second time O-1 applicants to "sort the wheat from the chaff." If a consular officer feels that an artist’s qualifications do not rise to the officer’s own standards of O-1 eligibility, then they are sending the approved petition back to USCIS with a recommendation for re-review and approval revocation. They appear to be focusing specifically on young artists—particularly those who are only recent graduates of schools, universities, and conservatories.

Not content with improperly refusing to issue O-1 visas, consular officers at the London consulate are also incorrectly telling O-2 applicants that they need to have "at least 10-20 years of experience in the field" in order to qualify for an O-2 visa (also absolutely wrong!) and are denying their visa applications as well. In other words, in addition to the long-standing issues with USCIS improperly reviewing petitions, the US Consulate in London is now frustrating matters further by substituting its own rules in place of the existing statutory and regulatory requirements.

To be sure, US Consulates have always had the discretion to refuse to issue a visa regardless of USCIS approval, but this authority has traditionally only been exercised in situations of national security, clear fraud or misrepresentation, criminal activity, or where the consulate believes an individual intends to enter the US and never leave. There have been isolated situations in the past where a new or poorly trained consulate officer has improperly refused to issue a visa, but the US State Department has always been willing to step in and resolve the matter. Unfortunately, we are now not merely dealing with an errant consulate officer, but the Chief of the entire Visa Division of the consulate. The American Immigration Lawyers Association as well as the League of American Orchestras and the US Performing Arts Task Force are all working to address this situation. However, as senior level consulate officials have almost unfettered discretion, its unlikely to get anyone in the US State Department to consider this a “problem” worth solving—especially considering the policies of the current Trump administration with regard to immigration.

In the meantime, the situation does not appear to be impacting artists who have either had prior O-1 visas or have a clearly distinguishable non-academic accomplishment such as Grammy Award, Gramophone Award, Olivier Award, Juno Award, etc. For everyone else, especially newly graduated students or young artists who have been approved for an O-1 by USCIS, we are recommending that they avoid the London Consulate and apply for their visa at a different US Consulate—such as Dublin or Belfast. Remember, regardless of which consulate may have been indicated on the I-129 visa petition, an artist can apply for his or her visa at ANY US Consulate in the world.

Here are some further thoughts and recommendations

If you cannot avoid the London consulate, make sure the artist brings a complete copy of the petition, including all the supporting evidence, to the consulate at the time of the visa application interview. Its also worth repeating our advice to provide as much evidence and background materials as you can in support of a visa petition. Ie: if your petition contains a bio, three articles, and two programs, just save some time and hire another artist. Even if by some miracle it gets approved by USCIS, there is a good chance the London Consulate will reject it.

If a consulate refuses to issue a visa, an artist can always apply at another consulate. However, he or she will need to disclose the prior denial and the reason. While one consulate will generally defer to another, a second consulate may issue the visa where it can review the complete petition and evidence and conclude for itself that USCIS was correct and London consulate was wrong.

If the London consulate contacts USCIS and recommends that the petition approval be revoked, our best advice is to prepare a new petition and start over. When the US State Department returns an approved petition to USCIS for “reconsideration” it can take up to 2 years or more for USCIS to re-review the petition…and then USCIS will just issue a Request for Evidence (RFE) or an Intent to Deny. Its better just to prepare and file an entirely new I-129, with even more evidence than you provided with the prior one, get another approval, and send the artist to another consulate with a copy of the new petition. You should also seriously consider consulting with an attorney at this stage as you will be sailing very dangerous waters.

While so far we have not seen similar problems with regard to the London consulate refusing to issue P-1 and P-1S visas, it may be only a matter of time. Ironically, US consulates have found more legitimate issues of fraud with regard to P-1 and P-1S petitions than O-1 and O-2 petitions.

2. NEW SERVICE CENTER JURISDICTION RULES

First, a quick review: there are two USCIS service centers that receive process visa petitions: Vermont and California. The US is roughly divided down the middle between them in terms of where petitions are filed. If an artist is performing in more than one location, then the appropriate service center is determined by where the petitioner is located. If the artist is performing in only one place, then the appropriate service center is determined by where the performance will take place.

As of May 20, 2017, UCISC announced that petitioners seeking to engage foreign guest artists (using the O or P classification) for work that will be done at a single location in Florida, Georgia, or North Carolina will need to send the visa petition and related documentation to the California Service Center. As, previously, these would have gone to Vermont, we suspect this is an effort to relieve the Vermont Service Center of a considerable backlog and speed up petition processing times.

After June 20, 2017, USCIS will reject any petitions sent to the wrong service center.

3. WHITE HOUSE APPROVES SOCIAL MEDIA CHECKS FOR VISA APPLICANTS

In furtherance of the Trump administration’s Executive Order mandating "heightened scrutiny" and "extreme vetting" at all levels of the visa process, the US State Department recently unveiled a new, supplemental questionnaire for US visa applicants that, among other things, requests a visa applicant’s prior passport numbers, five years of social media handles, all email addresses and phone numbers, as well as addresses, employment and travel history stretching back 15 years. This would be in addition to the DS-160 visa application form that all visa applicants are required to complete. The new questions are reportedly voluntary, but the form says that failure to provide the information may delay or prevent the processing of an individual visa application.

You can check out the new form yourself at:

New Form

According to the US State Department: “The additional questions will not be asked of all applicants, just those who consular officers determine merit a more “rigorous” evaluation." Of course, this determination is completely discretionary. Its not subject to any specific nationality or other disclosed criteria. A consulate officer can require the additional questions from any applicant the officer wishes for any reason or no reason. Moreover, as each consulate is allowed to make its own policies on how to implement the new, supplemental questionnaire, you can expect completely inconsistency from one consulate to another.

In addition to the obvious issues of invasion of privacy, time, inconvenience, outrage, and the question of what the government plans to do with this information after it has been collected (we don’t know either!), we are also concerned that this may be a way to find out whether or not an artist has ever performed illegally in the US. For more on that, read on….

4. SERIOUSLY—THERE ARE NO B VISA OR ESTA OPTIONS FOR PERFORMING ARTISTS

I know we keep saying this—and we’ve been saying it for years—but too many mangers, presenters, and others continue to ignore this issue. Artists cannot perform in the US without a work visa (usually an O or a P). It doesn’t matter whether or not they are paid, whether or not tickets are sold, whether or not the artist is performing at a festival or part of a “training program”, whether or not the artist is “just a student”, whether or not the performance is at a non-profit venue, whether or not the presenter is a university, and the list goes on.

In further response to the Trump administration’s Executive Order mandating "heightened scrutiny" and "extreme vetting", artists are increasingly being turned away—and in some cases actually handcuffed—merely for attempting to enter the US on B visas or through ESTA.

Recently, we’ve been receiving questions as to whether this policy also includes “amateur” groups such as children or student groups, choirs, and orchestras. Yes, it also applies to them. Regardless of whether or not the artists are paid (which is not a factor in the analysis), if the group is “professional” in the sense that the group tours, performs internationally, and, were it not for being “students” or being young, would otherwise be considered a distinguished professional ensemble, then they are not “amateurs” need artist visas, too. In other words, the Magic Molars, a group of British dentists who tap dance in their spare time, are amateurs. The Vienna Boys Choir is not.

5. SLIGHTLY FASTER PROCESSING TIMES?

I’ve saved what “may” actually be a crumb of good news for last….

The Vermont Service Center “may” be reviewing petitions a bit faster. Up until about a month or so ago, standard processing at both the Vermont and California Service Centers was taking up to three months or longer. However, we’ve recently enjoyed the shock and surprise of having petitions reviewed within one to two months!

Its too soon to know whether this is an official improvement or merely a momentary hiccup of efficiency. Nonetheless, if you file early and plan ahead, you may find it easier to get visa petitions approved through standard processing ($460) without having to pay extra for premium processing ($1225). Remember, you can always file with standard processing and upgrade to premium processing later if USCIS returns to its previous level of

6. FINAL THOUGHTS

As the rules can change at any time, it is critical that you consistently check with reliable sources (ie: not chat rooms, anecdotal information, or random google searches) for updates and developments before making any travel decisions, applying for visas, or booking foreign artists. Always check and confirm that whatever information you are given is, in fact, accurate. As a general rule, the length of time someone claims to have been doing anything is often disproportionate to their actual expertise in knowing how to do it.

For official and reliable visa information, 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


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.

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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. 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, Esq.
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