The COVID Travel Ban, Significant Consulate Backlogs, and Other Current Issues For Non-U.S. Artists
By Brian Taylor Goldstein
Sorry for the long delay since my last post, but, well…it’s been an interesting year, to say the least. Things are improving, but 2021 still needs more rehearsal time to work the kinks out. Here in New York City, some signs of normalcy are beginning to return. People are feeling safe enough to pee in the subway without their masks, the costumed characters in Times Square are again groping without hand sanitizer, and the rats are no longer practising social distancing when they spy a dropped pizza crust. As signs of life begin emerging in the world of the performing arts as well, artists and presenters are once again thinking internationally, including bringing artists and ensembles to the U.S. as soon as this summer. Which means, of course, we need to check in on the landscape of artist visas.
WARNING: This could all have changed by the time you read this, so read quickly!
Things have actually already shown signs of improving since Lord Voldemoron was defeated. Among them, USCIS processing times for visa petitions have shortened to approximately 1 to 3 months and a number of the King Babycoward’s more draconian policies have been reversed. However, a number of challenges still remain, not least among them is that the COVID travel ban remains in place. As a reminder, this means that anyone traveling to the U.S. from 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, and Vatican City), United Kingdom, Ireland, Brazil, South Africa, or India cannot enter the U.S. without EITHER traveling to a country not on the list and quarantining there for 14 days before entering the U.S. OR qualifying for an exception to the ban.
There are various exceptions for immediate family members of U.S. Citizens spouses, medical professionals, and people coming to help fix roads and bridges. However, there are no automatic exceptions for artists. For artists to get a waiver from the ban and enter the U.S. without first having to quarantine in a non-banned country, they must qualify for the “catch-all” exception of showing that it is in the “national interest” for them to be allowed to do so.
Getting a National Interest Exception for an Artist
It is not meant to be easy to get an artist approved for a National Interest Exception (“NIE”). It’s called a “exception” for a reason. However, as with everything the U.S. touches in the realm of immigration, it’s quagmire of inconsistencies.
Requests for NIE’s are submitted to the U.S. Consulate in the country where the artist is either a citizen or a permanent resident. Every consulate has its own policies and procedures for how you submit the request and how they determine whether an artist does or does not qualify for an NIE. There are no standard rules or procedures. In fact, at the moment, a few U.S. Consulates, including Vienna, have incorrectly taken the position that artists are not eligible for NIEs at all! Others just make up the rules by cutting the head off a chicken and seeing where it flops down on a giant procedural bingo card. This is frustrating…nay, maddening. However, this has always been the case. Historically, regardless of who is in charge or who controls Congress, there has never been any consistency, predictability, or reliability in the entire process of obtaining artist visas. It ebbs and flows. Nothing new to see here.
Based on the NIE requests we have had approved, the consulates we have been dealing appear to require the following:
(a) a major or significant artist;
(b) entering the U.S. to do something important for a major or significant U.S. venue or presenter; which
(c) cannot be done without the artist; and which
(d) would cause dire economic or institutional consequences if the concert or event were to be cancelled.
In short, the ideal candidate for an NIE would be a music director, stage director, soloist, or major artist entering the U.S. for a specific high-profile performance for a specific high-profile venue that is either part of the venue’s or organization’s much heralded return to live performances or which will be raising significant funds for the venue or organization after a year of being closed. In other words, the artist’s presence in the U.S. must be critical to the economic survival of the venue or presenter or the venue or presenter’s community. This means, for example, that a musician entering to perform as a member of an orchestra (as opposed to a soloist) or to perform at a festival with multiple concerts and events (unless the artist is a headliner) is highly unlikely to be approved for an NIE…regardless of who you know, what contacts you have, or how badly the artistic director stamps their feet.
If you plan to submit an NIE request, here are a few important things to keep in mind:
- In addition to providing a copy of the artist’s passport and O or P visa, you will need to provide (1) a letter from the venue or presenter (NOT THE MANAGER OR AGENT) explaining why the artist is so significant to whatever it is they need them to do that the organization’s future will be imperilled if the event or performance is cancelled and (2) A letter from the artist (AGAIN, NOT THE MANAGER OR AGENT) explaining why the artist cannot travel to a country not on the banned list and quarantine there prior to entering the U.S. (Most often, it will be either because the artist has other professional commitments in the country or that other travel bans prevent them from easily being able to go to other countries.) I also include background information on the artist as well as the venue or organization.
- A request can only be submitted to the U.S. Consulate in the country where the artist is either a citizen or permanent resident.
- The artist must be physically present in the country at the time the request is submitted.
- Once the request is submitted, the artist cannot leave the country and, if the NIE is approved, must fly direct from that country to the U.S. (Connecting flights in the U.S. are fine, but the artist cannot connect through another country on the COVID ban list.)
- A request cannot be submitted earlier than 30 days prior to the date the artist needs to enter the U.S.
- At the time the request is made, the artist must have confirmed airline tickets.
Once an NIE request has been submitted, some consulates will get back to you within 48 – 72 hours, others will take a few weeks, and others may not respond at all. Recently, London has been getting back to me within 24 hours—but, as you will see below, will find other ways to thwart your plans.
What If An Artist Has Been Approved For An O or P Visa, But Has Not Yet Received the Visa?
At the moment, most if not all consulates are either closed or are not accepting routine visa applications. In London, for example, there are currently no visa appointments available until October 2021. If an artist does not already hold an O or P visa, then at the same time they submit an NIE Request they will also need to request an emergency appointment. If the NIE is approved, then the artist will be given an emergency appointment date to come to the consulate and apply for their visa. If not, then the artist will need to wait until the consulates re-open. (I have some artists who have been approved for O or P visas, but have been waiting over a year to be able to apply for them.)
LONDON CONSULATE WARNING: I recently had an NIE approved by the U.S. Consulate in London for a UK Violinist who had been approved for an O-1B visa, but need to apply for the actual visa stamp. He was given an emergency appointment, went in, was told everything was in order, and that his visa would be issued asap…and after 3 weeks still had not received his visa. So, he had to cancel his U.S. date regardless of having obtained an NIE. (And, yes, we tried all of the available back channels—all of which proved to be backed up.)
Can Orchestras and Ensembles Get NIEs?
Anything is possible, but this is highly improbable for a number of reasons. First, NIE requests are submitted and approved on an individual basis. You cannot submit an NIE request for an entire group. A request would need be submitted on behalf of each musician and each person would need to qualify separately–which would not only prove unwieldy, but runs the risk of not everyone getting approved. Second, as you can’t apply for an NIE more than 30 days in advance of the travel date and you must have booked flights at the time you submit the request, you would have to incur the costs of air travel for an entire orchestra before even knowing if you can travel. And, third, there is the issue of getting emergency appointments for everyone when it’s hard enough to get an appointment for a single individual.
When Will The Ban Be Lifted?
Excellent question. I have no idea. Seriously. No idea. Nada. Nix. Please stop asking me. My expectation, based on nothing more than my intuition and speculation, neither of which have ever proven that reliable, is that rather than lifting the ban entirely, a new exception will be created for people who are vaccinated. But, seriously. I don’t know. There are a lot of rumours. I’ve heard them too, but please don’t rely on any of them. When these things are announced, we will all learn at the same time. Maybe by the end of May. Or not.
The only good news, such as it is, is that, unlike in the days of Uncle Scam in which the COVID ban was used purely as a tool to frustrate immigration, the current status of ban is based solely on COVID with no ulterior motives. Also, as the ban is causing significant economic harm to many different sectors of the U.S. economy, there is significant pressure to get it lifted or amended as soon as possible. In other words, we are not alone and a lot of pressure is being put on the Biden administration to lift the ban immediately.
What Will Happen When The Ban Is Lifted?
Once the COVID ban is lifted (or additional exceptions are created for those who are vaccinated), then the consulates will eventually fully re-open. However, the U.S. State Department has already issued warnings to expect delays as they work through a backlog of over a year of cancelled appointments. Those who had their appointments cancelled in 2020 will be given priority. I suspect this will make emergency appointments harder to qualify for, but this is all quite fluid. Again, no one knows. With luck, the expectation is that consulates will be allocated new staff as well as additional funding to expedite the backlog. Again, as there are many industries being impacted beyond the performing arts, all with more money and political influence, there is significant pressure to facilitate international travel as quickly as possible. Everything from tourism to trade depends upon it. Nonetheless, the artists, venues, and presenters we are working with are all being advised to have contingency plans and flexible expectations at least through the rest of 2021.
What about USCIS? What Are They Up To?
While we are joyously seeing fewer RFEs, officers loyal to the ploys and prejudices of the Tangerine Anus remain. As a result, we are still seeing a few spiteful RFEs asking that artists who remained in the U.S. during 2020 produce paystubs to prove they were not on unemployment and were not in violation of their O or P status. But maniacal spitefulness, a deranged sense of paranoia, and the intellectual capacity of a peeled grape have always been among the qualities USCIS seeks when hiring officers, so, again, nothing new to see here.
In summary, things are improving. The performing arts are coming back the way we all know they would. The industry might look different, but a beach always looks different after a hurricane sweeps through. Eventually, the sun comes out and we all go back in the water. We just may need to wait a bit longer for the waves and rip-tides to subside.
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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.
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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.