WHAT IN THE WORLD IS GOING ON NOW?
While the world focuses on various tragedies, disasters, and calamities (both natural and man-made!), United States Citizenship and Immigration Services (USCIS) and the United States Department of State have been very busy closing consulates and changing rules (some as recently as last week!) Here’s the latest list of changes and issues you need to know:
I. IMPORTANT RULE CHANGE IN WHERE VISA PETITIONS ARE FILED!
On October 13, 2017, USCIS announced two important changes in where I-129 Petitions for O and P visas petitions are to be filed. Effective November 1, 2017
- Petitioners based in TEXAS must now send O and P visa petitions to the USCIS CALIFORNIA SERVICE CENTER. (A similar change was instituted earlier this year for Petitioners based in Florida, Georgia, and North Carolina. This means that, as of November 1, 2017, Petitioners based in Florida, Georgia, North Carolina, AND Texas must file O and P visa petitions with the USCIS California Service Center and NOT the USCIS Vermont Service Center.
- All Petitioners must send O and P visa Petitions to the USCIS Service Center based on where the Petitioner is physically located and NOT based on where the performance(s) take place. This new rule applies regardless of whether the artist or group is performing at a single venue or at multiple, different venues. So, for example:
If a Petitioner is located in New York and the artist or group is performing at only one venue in the U.S. in California, then the visa petition must be filed with the Vermont Service Center.
If the Petitioner is located in New York and the artist or group will be performing a U.S. tour with venue in California, Texas, Indiana, and Pennsylvania, the visa petition must be filed with the Vermont Service Center.
If the Petitioner is located in Florida and the artist or group will be performing only in Florida, the visa petition must be filed with the California Service Center.
If the Petitioner is located in California and the artist or group will be performing only in North Carolina, the visa petition must be filed with the California Service Center.
These new rules go into effect on November 1, 2017. Any visa petitions RECEIVED by USCIS after November 1, 2017 and which have been sent to the wrong service center will be returned.
This means that petitioners have a little less than 1 month to sort out the correct service center before USCIS will start rejecting petitions sent to the wrong location.
Yes, they gave us less than a month’s notice!
II. U.S. CONSULATE ROULETTE
Closures and policy changes at various U.S. Consulates are becoming increasingly difficult to keep up with. As of today (October 18, 2017), here is what you need to know:
MOSCOW: Due to mandatory staffing reductions, all U.S. Consulates in Russia, except for the U.S. Consulate in Moscow, have been closed. As a result, only the U.S. Consulate in Moscow is processing applications for O and P visas. It can now take up to 60 days or longer for an appointment. After the appointment date, it’s anyone’s guess as to when an actual visa will be issued.
CUBA: The U.S. Consulate in Cuba is now closed. Any Cuban citizen needing to apply for a U.S. visa will need to travel to a U.S. consulate or embassy in another country first.
TURKEY: The U.S. Consulate in Turkey is now closed. Any Turkish citizen needing to apply for a U.S. visa will need to travel to a U.S. consulate or embassy in another country first.
LONDON: The U.S. Consulate in London continues to remain open, but it might as well be closed. We continue to receive reports that the U.S. Consulate in London is refusing to issue O-1 visas to some artists even though the artist’s petition for an O-1 visa was approved by USCIS. (In some instances, the London Consulate is even sending requests back to USCIS asking for the approved O-1 petition to be re-reviewed and then revoked.)
This appears to be particularly directed at young artists, first time O-1 applicants, anyone the consulate feels is not “famous enough”, or anyone they just don’t like. More established artists or artists who have previously been approved for O-1 visas seem to be ok. While, so far, we have not seen similar problems with regard to the London Consulate refusing to issue P-1 and P-1S visas, we have seen instances of them refusing to issue O-2 visas where they believe the O-2 applicant does not have sufficient experience with the O-1.
We are advising, where possible, for artists to avoid applying for visas at the London Consulate. If they cannot avoid the London Consulate, they we are recommended that all visa applicants bring physical copies of their I-129 petition and I-797 approval notices.
In addition, we continue to get reports that people emailing and calling a number of different U.S. Consulates are getting incorrect and inaccurate information. Remember, the person answering the phone or an email at a U.S. Consulate is often someone who just wandered in off the street to get warm. For accurate information, you should go to the consulate’s official website, the U.S. State Department website, the USCIS Website, or www.artistsfromabroad.org
III. DO ARTISTS NEED O OR P VISAS TO PERFORM AT BOOKING CONFERENCES OR AUDITIONS (or even for free?)
While there have been neither changes nor improvements to this oft misunderstood issue, there continues to be considerable confusion as to whether or not an artist requires an O or P visa to perform at a booking conference or audition in the U.S.—especially given the slew of artists being denied entry throughout this past year —and in some cases being arrested! Though not involving an artist, a young European college student attempted to enter the U.S. on ESTA this past summer to stay with a family who were friends of her parents for a summer vacation. However, she made the mistake of telling the immigration officer at the airport that she would be giving language lessons to the family’s son to help earn some spending money. Not only was she denied entry, but she was held in a regional jail for 48 hours, and then returned to Europe!
As we all know—or should know by now — artists cannot perform in the U.S. with only a B-1/B-2 visa or in ESTA status regardless of whether or not the artist earns a fee, tickets are sold, the performance is to benefit orphans and widows, etc.
Artists who enter either with a B-1/B-2 visa or in ESTA status entry are considered “visitors/tourists.” However, there is a very narrow exception whereby artists performing at a “legitimate” booking conference or audition are legally eligible to do so in ESTA status (or with only a B-1/B-2 visa if they are not eligible for ESTA), provided the booking conference or audition is (a) closed to the public (which means the performance is restricted to producers, promoters, agents, mangers, or people who may actually engage the artists); (b) no tickets are sold; (c) no fees are paid to the artist (other than actual, itemized expenses); (d) and the artist does not intent to perform anywhere else or under any other circumstances whilst in the U.S.
The problem, of course, is the chasm between how statutes, regulations, and laws apply in theory and how they are implemented practically.
Obviously, avoiding an O or P visa where none is legally required saves considerable time and expense. Even avoiding a B-1/B-2 visa where an artist is a citizen of an ESTA participating country can avoid a trip to the consulate and an application fee. However, whenever an artist attempts to enter the U.S. in ESTA status (or in any others status or visa), it is solely up to the discretion of the immigration officer at the border as to whether or not to permit the artist to enter. While some immigration officers are familiar with the various visitor/tourist exceptions, others are not. You always run into the risk that an immigration officer will deny entry as soon as they hear the word "artist" and "perform" in the same sentence. As a result, we continue to see artists being refused entry in situations where they should have legally been eligible to enter with a B-1/B-2 visa or in ESTA status while others are admitted with a B-1/B-2 visa or in ESTA status when they should not have been. It’s all quite a frustrating mishmash of unpredictable outcomes.
So, what to do?
Regardless of whether or not an artist has a valid legal argument to enter the U.S. with a B-1/B-2 visa or in ESTA status to perform at a legitimate booking conference or audition, it is often unreasonable to expect an artist to argue legal nuances whilst standing in a crowded immigration hall before an immigration officer who has a gun, a bad attitude, and the authority to make any decision they want for any reason. You need to consider various factors on a case-by-case basis. Where is the artist or group from? Have they traveled to the U.S. before? Are they sophisticated enough to explain why they are not required to have an O or P visa? Are they proficient in English? Are they easily intimidated? How are they dressed? Will their website be consistent with their statements should the immigration officer decide to look at it? Will the artist be able to present evidence supporting their argument? (Such as a letter from the booking conference or on behalf of the audition, a letter from the artist’s manager or agent (if any), a return ticket, background on the artist, a calendar of non-U.S. dates immediately after the conference or audition, etc).
If an artist either can’t or won’t deal with the risks, anxiety, and uncertainties, then sometimes it makes more sense just to get the O or P visa and be done with it. There are also practical marketing advances in that presenters and venues are VERY skittish about booking any non-U.S. artist or group in the first place if they think the artist won't be able to get an artist visa. It’s actually MUCH easier to get bookings in the U.S. if an artist already has or has been previously approved for an O or P visa So, sometimes spending the time and money on an O or P for a visa can actually pay off in the long term.
If for any reason an artist or group either cannot or refuses to obtain an O or P visa, then at the very least it is always wiser to advise an artist to apply for a B-1/B-2 visa even when the artist may otherwise be eligible to enter the U.S. in ESTA status. By obtaining a B-1/B-2 visa from a U.S. Consulate, the artist has already been vetted by a consulate which then puts less pressure on the immigration officer at the border to make a hasty and ill-informed decision. We have seen far less instances of an artist being refused entry to perform at a legitimate booking conference or audition with a B-1/B-2 visa than in ESTA status.
IV. SOME 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. It’s always best to check and confirm with multiple sources 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.)
As always, for official and reliable visa information, we recommend:
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.
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!