LAW & DISORDER
Performing Arts Division
January 25, 2023
USCIS PROPOSES DRACONIAN FEE INCREASES FOR ARTIST VISAS!
Despite my efforts to have our blogs and updates covering a wide range of topics, and not just artist visas, I am now frustratingly forced to focus entirely on a significant issue that has arisen in the world of obtaining visas for artists to perform in the US.
United Statues Citizenship and Immigration Services (USCIS), by and through the auspices of their reptilian overlords, the United States Department of Homeland Security (DHS), has proposed the following:
- The standard processing fee for O-1 and O-2 petitions would increase for $460 to $1655 per petition.
- The standard processing fee for P petitions would increase from $460 to $1615 per petition.
- O-2, P-1, and P-1S petitions would be limited to 25 people per petition.
- The Premium Processing Fee would remain at $2500 per petition, but the petition would be processed in 15 business days as opposed to the current policy of 15 calendar days.
So, for example:
- If a major orchestra or ensemble with 80 members wanted to tour the U.S., it would need to file 4 petitions at a total cost of $6460 in USCIS filing fees (4 petitions x $1615). If they needed support staff (managers, stage crew, etc.) that would require an additional petition at a cost of an additional $1615. If premium processing were required, that would cost an additional $12,500 (5 petitions x $2500).
- If a single artist wanted to enter with an accompanist, band, company members, or crew, that would require O-1 and O-2 petitions at a cost of $3310 (2 petitions x $1655).
USCIS argues that it is facing considerable backlogs and staffing shortages and that, as it must rely almost entirely on petition fees to fund its operations, it needs to raise its fees to meet demand and improve service. It also argues that, as a result of COVID, fewer petitions were filed, resulting in a significant loss of income.
To be fair, unlike most other government agencies, USCIS does, indeed, rely almost entirely on fees and not federal funding. Also, whereas Congress allocated specific funds to USCIS in fiscal year 2022 to be used to address backlogs, all that got taken away for fiscal year 2023. However, USCIS was infamous long before COVID for operating with the competency and efficiency of a Great Dane cooking a soufflé with an oven mitt on its head. Moreover, $600 of the proposed fee increases include an “Asylum Program Fee” whereby everyone who files a petition or application of any kind with USCIS will be assessed an extra fee to cover the costs of USCIS having to process an increased number of applications for asylum seekers and refugees. In other words, the proposed $1655 filing fee for an O petition actually consists of a $1055 filing fee plus an additional $600 “build the wall” fee.
Because these are “proposals” and not a final ruling, USCIS is required, however disingenuously, to provide a “comment period” for the general public and interested parties to provide comments, objections, and concerns. The comment period is open until March 6, 2023, after which USCIS will take several months to review public feedback, disregard any feedback it doesn’t agree with, and implement the new proposals anyway.
Many will recall that USCIS proposed significant fee increases and policy changes in 2019 and disregarded all of the public comments and objections at that time. Ultimately, it was only due to a lawsuit and a subsequent court injunction that thwarted USCIS’s plans. Having since had a chance to study its enemy and reassemble its forces, USCIS is proposing even more drastic proposals than it did in 2019.
Should you be in need of extraordinary abrasive toilet tissue, you can download, read, wince, and flush the full 500 pages of the Proposal HERE. Among its many slings and arrows, you will note that USICS specifically addresses, and summarily dismisses, any significant impact these proposals would have on “arts” and “culture.” At pages 99 – 100 of the Proposal USCIS writes:
“DHS is committed to reducing barriers and promoting accessibility to immigration benefits, and knows that the beneficiaries of Forms I-129 and I-140 fuel our economy, contribute to our arts, culture, and government…DHS is also aware that Forms I-129 and I-140 are submitted by non-profit entities [and] appreciates that non-profit or small entities may not have the same level of financial resources as many large, for-profit corporations that also submit petitions for foreign workers.
USCIS purports that it engaged in a study of the impact that petition fees have on non-profits and small entities and concluded: “…approximately 90 percent of the small entities in the sample experienced an economic impact of less than 1 percent of their reported revenue… USCIS acknowledges that those small entities with greater than 1 percent impact may file fewer petitions as a result of this proposed rule.” In short, USCIS ran all this by Disney, Netflix, and the NBA, who also file O and P petitions, and they expressed no objections to the additional fees. However, for those of you not supported by a national sports league, USCIS helpfully suggests on page 269 of the Proposal: “DHS acknowledges that applicants and petitioners may face additional difficulties in paying the fees, and may be required to…save money longer to afford the fees, or resort to credit cards or borrowing…”
Although artist visa petitions represent a small fraction of the work USCIS is asked to do, USCIS concedes at page 210 of the Proposal that it does not, in fact, have the capacity or data to determine whether or not O and P petitions for artists in particular are adding to its backlog at all. It specifically admits: “DHS lacks the information to propose separate fees for each of these classifications.” So, the teacher has merely decided to punish the entire class rather than attempt to discover exactly who put 12 tablets of Dulcolax in her tea.
In other words, USCIS continues to display less that a fart from a flea on the freckle on a demented rat’s ass about the arts and entertainment sector.
I strongly suspect that, as in 2019, fighting this new advance will require yet another lawsuit, except this time with all major arts organizations, service organizations, venues, and presenters all joining in as part of major class action. For now, we need to take advantage of the comment process and raise as much noise as we can.
A CALL TO ARMS!
The tireless warriors at the League of American Orchestras are working with national organizations throughout the arts and entertainment industry to prepare joint comments. However, it is essential that each of you—your artists, board members, audience members, supporters, friends, families, and even opposible toed pets—take the time to comment on the significant artistic and economic impact these proposals will have on the ability for international artists to perform in the US. ALL artists, from ALL sectors: jazz to opera, folk to theatre, rock to ballet, playwrights, composers, orchestras, bands, and everyone one all sides and in-between. We need to be in this together.
The League of American Orchestras has compiled suggestions for comments, including:
- International artists are engaged throughout the arts and entertainment industry, which is still itself recovering from the effects of COVID-19. Most of these entities do not, in fact, have the ability to pay these proposed fees.
- Drastic fee increases will stifle international cultural activity, put U.S.-based jobs at risk, and have a negative economic ripple effect on communities supported by arts events.
- Delays in processing are already forcing some petitioners to pay the already unaffordible Premium Processing Fee or forgo engaging international artists.
- To date, USCIS has ignores all proposals that have repeatedly been made to them through all available channels to suggest ways it could change its own policies and procedures with regard to reducing any backlog specifically related to O and P artist petitions, including (i) recognizing prior O and P approvals; (ii) requiring only updated materials as opposed entirely new petitions for artists that have recently performed in the U.S.; or (iii) deferring to experts and established arts organizations to know who is and is not a “distinguished” artist or group and not assume that every bassoonist or flower mime is being engaged purely to make America “less great.” (Ok, I added the “less great” bit on my own. Don’t include that.)
It is also essential to provide SPECIFIC examples of the financial impact these new fees will have on you or your organization in particular, such as cancelling performances, losing the ability to engage guest artists, etc.
Comments can be filed online through the Federal Register Portal by the deadline of March 6, 2023.
To make your comment, click HERE.
Please remember that any comments submitted through the Federal Register portal will be viewable by the public. So, avoid threats and keep swearing to a minimum.
In addition to issuing a formal comment in response to the Proposal, everyone is strongly encouraged to forward a copy of your comments to your U.S. Senators and members of the U.S. House of Representatives, as well as engage the your audiences, speak up and out, create performance art advocacy, and whatever else it takes for our situation to be taken seriously.
You can find a deeper analysis, along with further advocacy opportunities on the League’s website as well as on its recently released ADVOCACY ALERT.
Deep Thoughts
“Arise, arise, Riders of Théoden!
Fell deeds awake, fire and slaughter! spear shall be shaken, shield be splintered, a sword-day, a red day, ere the sun rises!
Ride now, ride now! Ride to Gondor!”
— J.R.R. Tolkien, The Return of the King
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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.
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 threatening email, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about or one size fits all!