U.S. ARTIST VISA UPDATE As of 5 April, 2019
Most of you are aware by now that in fall 2018 a number of significant policy and procedural changes were imposed on the already exasperating process of obtaining U.S. artist visas. Not surprisingly, these changes were the work of Donald Trump, who is also known by many other names: Cheeto-In-Chief, Trumpty Dumpty, Captain Chaos, Screaming Carrot Demon, Trumplethinskin, Darth Hater, The Tangerine Tornado, Agent Orange, Putin’s Papaya, Genghis Can’t, The Angry Creamsicle, Bumbledore, The Trumpet of Doom, The Tiny Tentacled Twitter Twat, Prima Donald, The White Pride Piper, and, my personal favourite, Baron Mango Von Wankerdoodle.
Over the last six months, we have now had a chance to see how these new policies are actually being implemented and imposed. (For a more extensive analysis of the changes themselves, please re-read our earlier blog posts from September 2018 and November 2018 or visit our website www.ggartgslaw.com)
I. TROUBLES FOR STUDENT O-1 PETITIONS
The rise in Requests for Evidence (RFEs) and visa denials for young artists seeking their first O-1 visa has grown considerably. This has become particularly true for artists who are already in the U.S. on student visas and, after graduation, seek an O-1 visa to remain in the U.S. Students who have entered the U.S. to pursue a course of study and who have only pursued their academic path without having also performed outside of the U.S. or also performed in non-academic concerts, recitals, and venues appear to be in the most peril. Remember, in the twisted world of U.S. artist visas, “achievement” and “recognition” does not refer to an artist’s degree of talent, ability, technique, mastery of repertoire, or esteemed mentors. Rather, it refers primarily to the degree of an artist’s publicity and professional (non-academic) fame or infamy. In other words, an artist who has performed on Britain’s Got Talent or who has may have received a Gramophone Award for “World’s Worst Violinist” is more likely to be approved for an O-1 than an artist whose only credits are a Master’s Degree in the baroque flute and a flurry of accolades from teachers and professors attesting to her great talents and skills.
II. USCIS IS NO LONGER GIVING “DEFERENCE” TO PRIOR VISAS
Just today, we received one of the most shocking denials I have ever seen in over 20 years of preparing artist visas: the top program director of the official arts council of a large U.S. state, who has been working in the U.S. on an O-1 visa for three years and who has considerable international recognition for his expertise in arts administration and education, was DENIED a new O-1 on the basis that (a) he failed to show that he continued to be “extraordinary” since arriving in the U.S. and (b) his initial O-1 should never have been granted in the first place.
We are also currently addressing a green card application filed by a musician who is the First Chair of one of the world’s leading orchestras, with enough credits to fill a trophy case and over a decade of O-1 visas, who has been asked by USCIS to justify why it would be in the “national interest” of the U.S. for him to live here.
Whether these are isolated situations or a worsening trend, this is insane!
III. USCIS IS ASKING FOR ORIGINAL UNION LETTERS, NOT COPIES
When unions and peer groups issue no-objection letters, they will often email a scan to the petitioner with the original to follow later in the mail. To save time, petitioners will simply print out the scan and submit that with the petition. USCIS has recently been issuing RFEs for the ORIGINAL letter, claiming that this minimizing the risk of fraud.
IV. U.S.-BASED MANAGERS/AGENTS ARE BEING ASKED FOR ADDITIONAL “PROOF” OF PETITIONER AUTHORIZATION
When U.S-based booking agents or managers file petitions for their artists to perform at multiple venues, USCIS has been requiring each presenter or venue to provide a signed letter formally authorizing the manager/agent to include the engagement on the petition, even if the manager/agent booked the date in the first place and/or issued the engagement contract. Artists and groups are also being required to sign a similar letter authorizing the manager/agent to file the petition on their behalf. Whilst these authorizations literally need only be one sentence, not all presenters or venues will agree to sign these easily. The only way around this is for the manager/agent to directly employ the artist or group directly as the U.S. producer or promoter.
V. PROCESSING TIMES
However, due to a significant backlog, USCIS standard processing is taking anywhere from 1 – 3 months. Premium processed petitions continue to be reviewed within 15 days—but, remember, the processing fee was raised to $1410 last fall. Yes, there are those out there who will tell you that they have had their petitions returned more quickly without paying for premium processing. However, that is purely anecdotal and not the norm. Even a blind bat can find its way out of the cave if it bumps its head enough times. In addition—and perhaps more significantly—there are delays in issuing receipt and approval notices (even with premium processing) as well as updating the USCIS database to reflect approvals.
This is significant because (1) a receipt notice is necessary to schedule an application interview at the consulate and (2) the consulate will not issue a visa until it can confirm through the USCIS database that a petition has, in fact, been approved.
VI. U.S. CONSULATES
U.S. Consulates continue to run amuck, operating as autonomous city-states subject to little to no oversight or supervision. As a result, there is a considerable lack of consistency with regard to what to expect when an artist goes to a consulate to apply for a visa. Some consulates are asking for original approval notices as well as copies of the visa petition, even though they are supposed to ask for neither.
However, predictably, we are mostly seeing this being an issue for students approved for their first O-1. Many consulates are taking longer to process visa applications as they conduct more thorough background checks and fraud investigations. Depending upon an artist’s ethnicity and/or past travel history, this can cause significant delays. Again, contrary to what you may be hearing, the U.S. Consulate in London continues to be a nightmare for O-1 visas except for all but the most famous or well-known artists. If managers or agents are telling you that their artists have had no trouble in London, congratulate them and then ignore them.
VII. ENTRY ON ESTA/VISITOR VISAS
This continues to be a significant obstacle. Please remember, except in very limited circumstances, artists are not authorized to enter and perform in the U.S. through ESTA or with a visitor (B-1/B-2) visa REGARDLESS OF WHETHER OR NOT THEY ARE PAID!
A non-U.S. artist manager was recently refused entry merely for saying that he was entering the U.S. to “help” one of his artists move out of his apartment. The immigration officer presumed “help” meant “providing professional services.” Whereas the same artist manager was permitted to enter only weeks before to attend a booking conference.
The primary issue continues to be that, even in those instances when an may be legally entitled to enter the U.S. either through ESTA or with a visitor (B-1/B-2) visa, an immigration officer the complete and unfettered authority to refuse entry to anyone for any reason. As the rules can change at any time, it is critical that you consistently check with reliable sources (ie: not chat rooms, facebook groups, or “the collective mind”) for updates and developments before booking a non-U.S. artist or group. At the very least, 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 in the arts industry 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!