By Brian Taylor Goldstein, Esq.
Dear Law and Disorder:
We obtained a three year O-1 visa for one of our artists. We are the artist’s agent and served as his petitioner. A large venue wants to book the artist, but they are insisting that, according to their finance department, they cannot pay us as the artist’s agent and that they must pay the artist directly as an employee of the venue. While we are willing to agree to this, the venue is also insisting that, because they must pay the artist directly, we either must file an amended petition specifically naming the venue as an employer or file a separate petition just for the venue.
Whether its dealing with visas, taxes, or employment issues, we here at GG Arts Law often find ourselves in loggerheads with CFOs, finance departments, HR directors, and others, especially at large venues and organizations, who seem to use the same recipe when developing policies and directives: Take one very broad workshop which they attended several years ago and is now outdated, add an opinion from a board or volunteer attorney who doesn’t actually specialize in the topic at issue, stir in some research done by an intern, mix well with incorrect anecdotes from peers and colleagues, add a dash of ego, bake well, and insist this is the law.
In your particular situation, the venue appears to be confusing several key concepts: (1) the nature of itinerary based visas for artists; (2) the ability to add additional engagements when an artist is on an itinerary based visa; and (3) the relationship (or lack thereof) between employment law and immigration law.
Itinerary Based Visas:
Most immigration scenarios contemplate a single employer submitting a petition on behalf of a non-US individual whom they wish to hire. In those instances, the employer submits an I-129 petition to USCIS and, once approved, the name of the employer will appear on the I-797 approval notice authorizing the individual to work for the employer. If the individual wants to work for more than one employer, then each employer needs to submit its own I-129 petition.
However, there is an exception for artists: The applicable immigration regulations recognize that O-1 artists of “extraordinary ability” typically come to the US to perform “on tour” and, thus, will have multiple employers who hire them to perform. In such cases, a single petition may be filed with USCIS covering all of the artist’s engagements with multiple employers in the US. These are known as “itinerary-based” O-1 visas because, as opposed to covering a single performance, the petition includes an “itinerary” of performances and engagements with multiple employers.
So, for example, let’s say that an opera singer is hired to perform at the Metropolitan Opera, San Francisco Opera, and Seattle Opera. While each venue could certainly file its own, separate I-129 petition, the Metropolitan Opera could be designated as the singers “agent” and submit a single petition on which it also lists the singer’s engagements at San Francisco Opera and Seattle Opera. As the petitioner, only the Metropolitan Opera’s name would appear on the I-797 approval notice. However, because all three venues were listed on the singer’s “itinerary” the singer would be authorized to perform for all three. Alternatively, if the singer had an actual US agent or manager, the singer’s agent could serve as the petitioner and serve as the petitioner and submit a single I-129 petition to cover all three engagements. Again, as the petitioner, only the agent’s name would appear on the I-797 approval notice. However, because all three venues were listed on the singer’s “itinerary”, the artist would be authorized to perform for all three.
Adding Additional Engagements:
Continuing with this example, let’s suppose that after the singer arrived in the US, the singer was contacted by Washington Opera and asked to replace another singer who fell into the orchestra pit and can no longer perform the role. This last minute engagement would take place between the singer’s engagement with San Francisco Opera and Seattle Opera. Does Washington Opera have to file its own separate I-129 petition? No. Does the petitioner of the singer’s original I-129 petition have to file an amended petition “adding” this new engagement? No. Provided that additional engagements occur within an artist’s approved or existing O-1 classification period, and provided that the engagements or services are consistent with the artist’s O-1 qualifications (ie: performing, teaching, master classes, residencies, etc.), the artist is legally permitted to add and perform such additional engagements without the necessity of anyone filing an amended petition or otherwise notifying USCIS of the additional employers. The triggering factor is whether or not an artist was on an itinerary based visa with multiple employers to begin with. (By contrast, if an artist wants to add an engagement or performance that would take place after the period of the artist’s approved or existing O-1 classification period, that would require a new or amended O-1 petition to be filed.)
The Immigration Implications of the Employment Relationship:
Many people see the word “employer” used throughout US Immigration Law and its applicable regulations and presume that it has the same connotations as when used in the context of a traditional “employer-employee” relationship. It does not—particularly in the context of O and P artist visas. US Immigration Law uses the term “employer”, at least in the context of O and P artist visas, to refer to anyone who hires or engages the services of an artist in any capacity regardless of how the employment relationship is structured. A petitioner is neither presumed nor required to be the artist’s actual employer under any circumstances. Moreover, it doesn’t matter who pays whom or whether the artist is paid as an independent contractor or an employee, or even whether the artist is paid at all. This is because US immigration law does not use payment, or lack thereof, as a determinative factor in whether or not an artist requires an O or P visa. If an artist performs in front of an audience or otherwise provides professional artistic services in the US, such artist is required to have either an O or P visa regardless of whether or not the artist is paid, tickets are sold, or the artist receives any compensation from any source directly or indirectly. Thus, while the petitioner of an itinerary based I-129 O-1 petition can also serve in the dual role of one the artist’s employers, there is no requirement under any aspect of applicable immigration law that the petitioner actually serve as one of the artist’s employers, much less that all employment and payments go through the petitioner, or anyone else for that matter.
In short, so long as the artist is on a valid, itinerary-based O-1 visa, anyone can hire and pay the artist, directly or indirectly. Who pays the artist and how are all contractual issues to be negotiated between the parties and not immigration issues.
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For additional information and resources on this and other
legal and business issues for the performing arts, visit ggartslaw.com
To ask your own question, write to lawanddisorder@musicalamerica.org.
All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.
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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. Please consult with an attorney familiar with your specific circumstances, 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, filing a lawsuit, or doing anything rash!
Recently appointed Music Director of the Greater Bridgeport Symphony, cellist Eric Jacobsen is co-founder, along with his violinist brother, Colin, of Brooklyn Rider, the genre-defying string quartet. The Knights, an orchestra of friends from a broad spectrum of the New York music world, evolved from late night chamber music reading parties at the home of Colin and Eric, who now serve as co-artistic directors. Among the group’s diverse talents are composers, arrangers, singer-songwriters and improvisers who bring a range of cultural influences. Both ensembles are performing worldwide.
Wagner, Duke of Erl
Monday, September 29th, 2014By ANDREW POWELL
Published: September 29, 2014
ERL — Nothing tests funding for the musical arts like Der Ring des Nibelungen. Then again, nothing cements a support base so decisively. Take this Austrian village of 1,452 souls and several hundred brown cows, where the eighth Ring cycle in sixteen years turned smoothly Aug. 1, 2 and 3, literally around the clock. Here a tradition of community participation in the arts — rooted in four hundred years of staging the Passion of Jesus — has since 1998 combined with local business money, political will, creative determination and a realistic setting of priorities to endow and operate the three-week-long Tiroler Festspiele, at which Wagner’s music takes pride of place.
Gustav Kuhn, 69, conductor of all these Ring cycles, helped found the festival. Often lazily dubbed a “maverick” because he shapes his own calendar and seldom works with mainstream orchestras and opera companies, Kuhn in fact roams freely less than he builds. Beyond that support base, he and the festival have partnered with a religious order in Lucca (to house a training facility for singers and other artists, the Accademia di Montegral), with orchestra pools in Minsk (to procure players for Erl), with an artist manager in London (for vocal soloists) and with a design firm and the Col Legno record label in Vienna (for graphics, CDs and DVDs). Kuhn’s music-making is if anything conventional, in contrast to that of true mavericks like Nikolaus Harnoncourt, and it fits that fellow Salzburger Herbert von Karajan was once a mentor.
An iron crown of thorns separates the village’s two performance venues. It could easily double as a symbol for the circle of fire on Brünnhilde’s rock, but its purpose was to decorate Robert Schuller’s 1,500-seat Passions-Spielhaus (1959), a cream Corbusian curlicue erected for the sacred plays and now also used for the Ring. Fifty yards away stands proof of the Tiroler Festspiele’s success: a jagged black 862-seat Festspielhaus that would have been designed by Lockheed if Delugan Meissl had not arrived first. Just two years old, this was the venue for three Bruckner symphonies over the summer, and, being insulated, it has enabled a new winter extension of the festival. Grazing fields occupy the space fronting the two buildings down to the main road, which follows the Inn River as it races out of the Tyrol into Bavaria. Parking is at a walkable distance north of the cows.
Despite its curl, the Schuller hall is laudably plain, with bare floors and a wooden roof. It offers mellow natural acoustics and easy sightlines and would be ideal for Wagner’s tetralogy except for one detail: Jesus’ suffering and resurrection required no orchestra pit. The large Ring orchestra, then, sits on risers behind a scrim while the action takes place downstage. This repurposing is evidently blessed: our Aug. 2 Walküre storm began and ended in sync with a deafening downpour on the roof.
For the second time in the festival’s history, Wagner’s three Tage were performed within the space of 24 hours, Siegfried starting at 11 p.m. and Götterdämmerung ending at 4 p.m. The tight schedule fueled advance doubts about staying alert during the music. These proved unfounded, but expectations of audience camaraderie were likewise off the mark. Instead a quiet numbness prevailed during intermissions as people ate sausages, drank beer, lounged in lime-green deck chairs and generally conserved their energy. Attendance held up, even for the wee-hour Siegfried. Hotels for miles around, most of them small, and all full, knew to expect oddly timed guest comings and goings.
Jan Hax Halama’s feeble, box-based props offered a degree of unity through the cycle but little in the way of beauty or grandeur. Lurid lighting didn’t help, and at no time did the orchestra vanish from view. The action schemes, by Kuhn, worked best in intimate exchanges such as between Wotan and Fricka, Waltraute and Brünnhilde. Siegfried’s journeys made good use of the theater’s aisles, but it was alarming — notwithstanding the custom of local involvement in Erl’s Passion plays — to see preschoolers bear open-flame torches for fire scenes down the darkened aisle steps as fire-brigade members watched from the side doors, vital moments away from any devastating potential fall.
Musically there were rewards. Compared with recent Ring cycles in Bayreuth, Vienna and Munich, Kuhn’s leadership offered consistency (beyond Christian Thielemann), imagination (unlike Franz Welser-Möst) and propulsion (trouncing Kent Nagano). He astutely judged balances, given the orchestra’s recessed position. The winds of his mostly young, partly Byelorussian orchestra played eloquently and tirelessly. Thomas Gazheli sang an incisive, many-faced Rheingold Alberich and a vivid Wanderer. Vladimir Baykov’s Walküre Wotan would be an asset on any stage. Hermine Haselböck’s firm-voiced, elegant Fricka (in both operas) recalled the young Waltraud Meier, despite some forcing. The clarion-topped, warmly intoned Brünnhilde of Mona Somm set the seal on Gotterdammerung, of which Act II — and notably its Vengeance Trio, with Michael Kupfer’s manly coke-snorting Gunther and Andrea Silvestrelli’s worthy but woolly Hagen — emerged as the cycle’s strongest unit. Anne Schuldt made a persuasive visiting Waltraute.
Compromises included Johannes Chum’s sweet-toned but unsteady Loge and the willing but imprecise choristers in Götterdämmerung. Otherwise Erl’s realistic priorities took their heavy toll. The string sound: not fully cultivated, possibly reflecting limited rehearsal time or skill levels Kuhn could not improve. Principal roles inadequately taken: the Wälsung twins, the Hunding, the Walküre Brünnhilde (cruelly mis-assigned to a low-lying lyric voice) and the Siegfrieds in both operas (the first reduced to marking his way through Lachend erwachst du Wonnige mir, the second devoid of heroism). Characteristically undeterred, this valiant village mounts two more Ring cycles next summer. Moo!
Photo © 2014 Franz Neumayr
Related posts:
Kuhn Paces Bach Oratorio
Nazi Document Center Opens
Carydis Woos Bamberg
Arcanto: One Piece at a Time
Bumps and Bychkov at MPhil
Tags:Accademia di Montegral, Andrea Silvestrelli, Anne Schuldt, Col Legno, Commentary, Das Rheingold, Der Ring des Nibelungen, Die Walküre, Erl, Götterdämmerung, Gustav Kuhn, Hermine Haselböck, Jan Hax Halama, Johannes Chum, Michael Kupfer, Mona Somm, Review, Siegfried, Thomas Gazheli, Tiroler Festspiele, Vladimir Baykov
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