GOOD NEWS: USCIS has agreed to call off its planned furlough of 13,500 employees which had been scheduled for this weekend.
BAD NEWS: In exchange for this, the U.S. House of Representatives has unanimously agreed to let USCIS raise the premium processing fee from $1440 to $2500 for O and P petitions and cancel the outside contractors who help process and intake petitions, thereby slowing down standard processing.
There has, as yet, been no announcement of when
the higher premium processing fee will go into effect. As with the other recent
fee increases, USCIS will be required to go through a regulatory processes
whereby they will ask for public comment, ignore that, and then raise the fee
anyway.
So, just in case you’re not following along:
USCIS got into this financial mess was because its policies resulted in fewer people filing petitions and, therefore, less revenue.
It stamped its foot and threated furloughs and slowdowns unless it got $1.3 billion dollars by August 30.
They knew that they were never likely to get $1.3 billion from an administration that would prefer them just to shut down completely.
So, USCIS has agreed to cancel the furloughs in exchange for being allowed to slow everything down anyway with the expectation that this will force people to pay for premium processing, and then raise the premium processing fee so that fewer people can afford it, thereby resulting in even fewer people filing petitions.
On a related note, historians have recently unearthed a photo of the skeletal remains of Ken Cuccinelli, the Acting (“illegally”) Director of U.S. Citizenship and Immigration Services taken just prior to when Trump poured rabid squirrel blood into his tomb.
GG Arts Law provides a comprehensive range of legal services and strategic support for the performing arts, including: Artist Visas, Taxes, and Touring; Rights & Licensing; Negotiations & Representation; Contracts; Business & Non-Profit Organization & Management; Project Management; and Strategic Consulting & Planning.
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 or threatening email to someone, filing a lawsuit, or basically doing
anything that may in any way rely upon an assumption that we know what we are
talking about.
I. Consulates Are Open, But Now Refusing To Issue Visas To Applicants Who Have Been In Certain Countries
For artists who have been approved for visas, but have been waiting months to apply for them at a U.S. Consulate, many U.S. Consulates have re-opened and are beginning to issue visas. But not so fast…there continues to be a travel ban on foreign nationals entering the U.S. who have been in any of the following countries for 14 days or longer prior to their intended date of entry:
China, Iran, The European Schengen Area (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Monaco, San Marino, Vatican City), the United Kingdom (England, Scotland, Wales, Northern Ireland), the Republic of Ireland, Brazil, and all of Middle Earth (except Mordor, because Trump is pals with Sauron!)
Please Note: the travel ban applies to anyone who has been physically present in this countries regardless of citizenship.
U.S. Citizens and green card holders, certain family members, and other individuals entitled to “national interest waivers” and who meet specified exemptions are allowed to enter the U.S., but only through one of 15 designated U.S. airports.
Until recently, the prevailing advice has been that for anyone impacted by the ban to apply for and obtain their visa at a U.S. Consulate, then fly to a country not on the list, wait there for 14 days, and then enter the U.S. (Of course, entry into the third country depends on that country’s entry and quarantine restrictions.)
HOWEVER….wait for it….
reports have been increasing that certain U.S. consulates are refusing to issue visas to anyone impacted by the ban regardless of whether or not they intend to travel to a third country and wait there for 14 days. Although the travel ban applies only to travel and entry and does NOT prohibit U.S. consulates from issuing visas to artists with valid USCIS approval notices, certain U.S. consulates have taken it upon themselves to go a step further, claiming that they have no way of guaranteeing that the visa holder won’t simply fly directly into the U.S.. Therefore, none shall pass.
As a result, if an artist has been approved for a U.S. visa, but a U.S. Consulate refuses to issue the visa based on the travel ban, then we recommend the following:
Travel to a country that is not on the U.S. travel ban list (such as Canada, Russia, or Barbados) and which has a U.S. Consulate that is open and issuing visas. (This is subject, of course, to that country’s own entry and quarantine restrictions. Many countries have their own strict quarantine and entry restrictions.)
Schedule your visa application appointment for 14 days after you arrive.
Document you arrival and your 14-day stay.
Once you receive your visa, fly directly to the U.S. (Transit back through a travel-banned country will re-trigger then ban and you will have to start all over again.)
II. National Interest Waiver Exceptions To The Travel Ban
Assuming an artist subject to the travel ban already has or can find a U.S. consulate willing to issue a visa, they “MAY” be able to obtain a “National Interest Waiver” and be allowed to enter the U.S. without having to quarantine first in a country not on the travel ban list. As you may imagine, the process is vague, convoluted, and labyrinthine, but broadly, there are two options to obtain such a waiver:
1. Apply for a National Interest Waiver at a U.S. Consulate
Every consulate has its own rules and procedures for how to do this, but, generally:
Contact the U.S. Consulate in whichever country you are physically located no earlier than 30 days prior to the date of travel.
Explain that you have an immediate need to travel to the U.S. within 30 days and cannot quarantine in a third country.
Provide a letter from your venue, presenter, employer, etc. explaining why it is critical that you be physically present in the U.S, that your work or performance is essential to them, and that it cannot be done remotely or via “streaming” outside of the U.S.
Agree to quarantine for 14 days after your arrival in the U.S.
You will then need remain while this is pending. If
the waiver is granted, you will be sent a letter to present to an immigration
officer when entering the U.S.
You will also need to check the website of the specific U.S. Consulate where you intend to apply for specific instructions.
2. Apply for a National Interest Waiver from U.S. Customs and Border Protection (USCBP)
Under a new procedure recently put in place by the Department of Homeland Insecurity (DHS) that they didn’t both to tell anyone about unless you went looking for it, you can also apply for a National Interest Waiver by contacting one of six airports which have been authorized to issue waivers: Boston, JFK, Miami, Newark, Chicago/O’Hare, Dallas/Fort Worth, LAX. As with applying at a U.S. Consulate, this needs to be done before you travel and the requirements are generally, more or less, somewhat, similar as those listed above for consulates. However, of course, each airport has a different procedure and there is no oversight, so you will need to visa the USCBP website for the specific airport where you intend to apply for specific instructions.
III. RFEs Are Being Issued on Maintaining Status During COVID
On July 31, we sent out an email reporting a two instances where USCIS appeared to be targeting unemployed artists currently in the U.S. and who either already had O-1 classification and were merely seeking a visa extension or who were seeking to change their classification from F-1 to O-1. In each instance, USCIS issued a Request for Evidence asking for proof that the artist has maintained their status by having work or other valid employment between March 2020 and the date of the petition, knowing full well that the entire arts and entertainment industry was unemployed at every level.
We then sent out a new email on August 1, saying we have just learned of another instance.
In what can only be described as a shocking degree of cold-hearted darkness, even for DHS, more such RFEs have continued to be issued. As such, this seems to be yet another obstacle shall have to overcome.
We provided some specific suggestions on how to deal with these RFEs in our June 30 the blog post “USCIS May Be Coming After Unemployed Artists” which you can find on our website. However, in general, when filing petitions on behalf of artists who are currently present in the U.S. and who wish to remain—regardless of whether this is their first O-1 or their third—you MUST include evidence that the artist has been working or performing during the pandemic AND that their future employment requires them to be physically present in the U.S. USCIS is arguing that engagements for performances intended for streaming can be done outside of the U.S. and do not require the artist to be physically present.
IV. Furlough-nado
Did anyone see this coming? For those of you who have may have missed this news amidst the cavalcade of plagues, fires, floods, injustice, riots, fascism, and world collapse that we have come to know as 2020, USCIS plans to furlough 13,500 employees on August 30, 2020 if they do not receive a requested 1.2 billion bailout from Congress. Several U.S. Senators have urged USCIS to postpone these furloughs, not because their care about immigration, but because the most recent projections indicate that USCIS had sufficient revenue to cover all its employees through the end of the current fiscal year and still have an enough balance to start the New Year. Regardless, USCIS claims this is not nearly enough, even with the fee increases that are set to go into effect on October 2, 2020. So, without consensus from Congress on this issue (and that’s less likely than a crawfish whistling the Mozart) and the clock ever ticking, the possibility of furloughs looms ever higher.
Here’s what you need to know:
USCIS does NOT intend to shut down or cease operations! However, furloughs will slow down the processing of applications and cause noticeable delays—particularly since, in recent months, USCIS has been relatively speedy given that petitions in many non-artist related visa categories has come to a grinding halt. Also, there has been no indication that Premium Processing will not continue to be available as an option. Therefore, so long as USCIS remains operational to some degree, then, to avoid premium processing on top of the other fee increases that will go into effect on October 2, consider filing petitions for Spring 2021 engagements sooner rather than later.
And, lastly, I leave you with this…
For additional information and resources on this and other legal, project management, and business issues for the performing arts, as well as to sign up for our newsletters and follow us on social media visit OUR NEW WEBSITE: ggartslaw.com
THE OFFICIAL LEGALESE:
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 or threatening email to someone, filing a lawsuit, or basically doing
anything that may in any way rely upon an assumption that we know what we are
talking about.
On July 31, 2020, DHS (The Department of Homeland (In)Security) issued a “Final Rule” confirming that USCIS (Unconscionable, Shameful, Callous, Immoral, and Sinister) will be imposing steep fee increases for visa petitions as well as creating new forms. Assuming that the many lawsuits and injunctions that are already in the works don’t stop this, then on October 2, 2020 the following changes will go into effect:
There will now be two different petition forms to file for O and P visas.
To file for O and O-2 visas, you will use an I-129O
To file for all P visas (P-1, P-1S, P-2, P-3, and P-3S), you will use an I-129MISC
The new fee for filing for an I-129O will be $705.
The new fee for filing an I-129MISC will be $695.
There will be a cap of 25 beneficiaries per petition.
This means that an orchestra or performance troupe with 60 performers and 10 staff and crew will now need to file four—yes 4! – I-129MISC petitions (3 for the performers and 1 for the staff and crew) at a cost of $2780 for standard processing. If they want premium processing, then that will be an additional cost of $5760.
This also means that if any one of the 4 petitions gets an RFE, they will all get an RFE.
And speaking of premium processing, the current premium processing fee of $1440 will remain. HOWEVER, premium processing will now be 15 business days as opposed to 15 calendar days—effectively making it 19 days.
As part of the Final Rule, DHS provides written responses to the thousands of comments it received in opposition of these changes, including specific concerns and objections raised from throughout the arts industry. To those of you interested in mucking through the Final Rule’s 500 pages of flaming simian excrementum just click on the actual picture of flaming simian excrementum, below:
However, in response to detailed comments submitted by hundreds of arts organizations objecting to these proposed changes, several DHS pearls caught my eye:
In response to the concerns that these changes will have a particularly burdensome impact on the already struggling performing arts industry, DHS contends that this will have no economic impact on those who file O and P petitions and writes:
“DHS does not intend to deter or unduly burden petitioners requesting workers in the arts, but any preferential treatment provided to petitioners for performers and musicians is borne by other petitioners, applicants, and requestors. DHS declines to require other applicants and petitioners subsidize the cost of petitioning for workers in the arts.”
TRANSLATION: “I once took my kid to the Monster Truck Dixie Rebel Stampede and Dinner Show and they charged me $17.50 for a Double Energy Mountain Dew! So, you people who work in the arts make more than enough money.”
As to why USCIS is charging more for O petitions than P petitions, DHS writes:
“DHS implements fees based on data that show adjudications of O nonimmigrant petitions require more staff, and are therefore more costly, than adjudications of petitions for nonimmigrant workers that may be requested using Form I129MISC.”
TRANSLATION: “It takes a lot of time to confirm whether or not the role of the Phantom of the Opera is, in fact, a lead or starring role. And because its an opera, you’ll need a no-objection letter from AGMA instead of Actor’s Equity.”
In response to the issue of whether or not USCIS will continue to consider traditional expedites for non-profits who have an emergency or an immediate need (such as replacing a sick U.S. artist with an available non-US artist), DHS writes:
“USCIS has implemented an expedite policy for certain petitions in the past. Whether a petitioner seeks to enhance the cultural and social interest in the United States may have been considered when USCIS decided to favorably exercise its discretion when considering expedite requests…DHS may consider whether to provide expedited processing for certain petitions based on its workload in other areas and ability to meet promised deadlines. Also, depending on the immigrant or nonimmigrant classification sought, the petitioner may request premium processing service by filing Form I-907 and paying the associated fee.
TRANSLATION: “We need the cash, so cough up the $1440 you Godless Leftists!
In response to the concern that increasing the premium processing period from 15 days to 19 days could imperil last minute engagements or emergencies, DHS writes:
DHS believes the possibility that a petitioner requesting premium processing service may need to wait a few additional days for adjudicative action is a small cost to impose for being able to expand premium processing to more requests and reduce the likelihood for future suspensions of premium processing service.
In response to the concern that putting a cap of 25 beneficiaries per petition could have a devastating financial impact on large performing arts tours, such as theater productions, orchestras, and dance companies, DHS responds:
USCIS must conduct full background checks on named workers and does not merely check to determine how much time the worker has spent outside of the United States…Because USCIS completes a background check for each named beneficiary, petitions with more named beneficiaries require more time and resources to adjudicate than petitions with fewer named beneficiaries. This means the cost to adjudicate a petition increases with each additional named beneficiary.
TRANSLATION: “Do you have any idea how long it takes to determine whether any of those musicians in the brass section have ever posted anything nasty about Beloved Leader?”
In response to the concern that, as USCIS often loses related petitions (such as O-1 and O-2 or P-1 and P-1S) and incorrectly sends them to different examiners who review them at different times, then requiring multiple petitions for the same large group will increase the likelihood of confusion and unnecessary RFEs, DHS asserts:
“DHS disagrees with commenters that the separating of Form I-129 will create confusion and delays.”
TRANSLATION: “Sorry we cannot offer any suggestions to address or solve your problem. Have we addressed all of your customer service concerns? Have you tried our special for premium processing service for our most valued customers?
Many commenters on behalf of multiple industries all raised the question of why do this now in the midst of a pandemic and a economic crisis impacting all industries, to which DHS responds:
DHS makes no changes in this rule in response to the pandemic. USCIS considers all available data at the time it conducts its fee review. USCIS conducted most of the FY 2019/2020 fee review in FY 2017, before the emergence of the pandemic. At that time, USCIS did not foresee, and could not reasonably have foreseen, the effects of such a pandemic on USCIS receipt, revenue, or cost projections during the FY 2019/2020 biennial period, and we cannot project the effects at this time. The projections in this rule were based on conventional conditions, and with no way of knowing or being able to predict the long-term effects of COVID-19 at this point, DHS must assume that filing volumes will return to near previous levels within a reasonable period.
TRANSLATION: “There is nothing to see here. All is well. Beloved Leader is the best leader in the world and all other leaders are jealous of him and his very large hands. All hail Believed Leader, Infallible General, Defender of the Faith, and Protector of the Good People Who Know Who You Are!”
And, on the heels of our recent post earlier in the day on July 31 that USCIS seems to be targeting artists who have remained in the U.S. during the pandemic without performing, we have learned of yet another artist receiving an RFE wherein USCIS is challenging whether or not the artist has been violating her status by remaining in the U.S. and not performing during the pandemic. So this may be a trend.
DHS’s recent actions, fueled by its spurious and odious responses to very legitimate concerns raised by an industry already struggling for survival throughout the world, needs to further the already excessively tested resolve of all of us to keep the doors open to artists throughout the world. In short, we shall fight them by being cleverer, more creative, and smarter than they are. We shall fight them in our petitions. We shall fight them at the consulates. We shall fight them at the airport immigration halls. We shall fight them with mockery, distain, and relentless provocation. We shall fight them at the ballot box, but we shall never surrender!
For additional information and resources on this and other legal, project management, and business issues for the performing arts, as well as to sign up for our newsletters and follow us on social media visit OUR NEW WEBSITE:ggartslaw.com
THE
OFFICIAL LEGALESE:
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 or threatening email to someone, filing a lawsuit, or basically doing
anything that may in any way rely upon an assumption that we know what we are
talking about.
