Shocking as it may sound, USCIS has passed a tiny wind of hope in the direction of artist visas during this coronavirus pandemic.
The Department of Homeland Security (which sets the policies for USCIS) has confirmed that applying for unemployment benefits and/or applying for benefits under the recently enacted Coronavirus Aid, Relief, and Economic Security (CARES) Act WILL NOT be taken into consideration as violations of the Public Charge Rule when reviewing petitions for O or P status or green cards. (This does not include Medicaid or any government program (other than unemployment or CARES) which requires a “means test”—ie: programs which require someone to show that they make under a certain level of income.
It remains to be seen as to whether or not applying for or receiving unemployment benefits will later be insidiously used by USCIS as a “gotcha” under the separate rule that if an artist becomes unemployed, they are not authorized to remain in the U.S. and look for work and are required to leave. So, applying for unemployment benefits could “theoretically” still be used by USCIS as an admission by an artist that they have no work. However, as I wrote last week, USCIS has also generally, sorta, kinda, implied that they will be “reasonable” in light of the Covid-19 situation…and that’s about as good as you’re going to get from them until they change their minds.
For now, if any non-US artist finds themselves furloughed or unemployed, which is likely to be most of you, you may now take advantage of whatever unemployment and/or CARES benefits you may be entitled to. So glissando, tap dance, and project your way to those websites and start applying before the airlines and pharmaceutical companies gobble all the funds up. Godspeed.
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 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 email, filing a lawsuit, or doing anything rash!
Cancelled Engagements, Unemployment, Layoffs, and Visa Renewals
March 31, 2020
By Brian Taylor Goldstein
As the tumbleweeds blow through Times Square and we begin to consider the viability of Easter peeps or even kale to supplement the dwindling toilet paper supplies, there is an understandable amount of angst and confusion on many fronts. Not least among them are non-U.S. artists who find themselves trapped inside the U.S. with no engagements, or with visas about to expire, or, like so many, laid off or unemployed.
There is a lot of conflicting information out there primarily because U.S. immigration policies are determined by the U.S. Government which has provided little or no direction on these issues; they are far too engrossed trying to quell the spread of the Coronavirus through sacrificing chickens, burning witches, assessing blame, and finding new and enthralling ways of praising and consoling Our Dear Beloved Leader and Perfect Incarnation of The Appearance That A Leader Should Have.
So, in no particular order, here is an update of what we know (or sort of know based on what we can surmise from what we know.) Premium Processing
1. Premium Processing In case you have not already heard, USCIS suspended Premium Processing effective March 20, 2020. Until further notice, any future petitions filed with premium processing will automatically be sent to standard processing and your premium processing fee returned. Current standard processing times are ranging from 3 – 6 months at both of the paradoxically named USCIS “service” centers.
2. Artists Trapped In The U.S. Due to the quagmire of travel restrictions, cancelled flights, and border closures, there are a number of artists who find themselves stranded in the U.S. with visas about to expire and who are unable to leave. Has USCIS has made any special exceptions or provisions for artists who may be forced to remain in the U.S. beyond the expiration date of their visa until they can fly home? Certainly, they will not be rounded up as enemies of the state? To the contrary, if an artist finds themselves in the U.S. in such situation, then before their current visa expires they will need to file a petition either to extend their current status and extend their stay, or change their current status to a different status and remain.
Here’s a real life question we received on this issue:
My O-1 visa expires in May. I was approved for a new one starting in August. My petitioner did not ask for an extension of stay because I was supposed to fly home for a summer festival, but that has been cancelled and now I want to stay in the U.S. What are my options?
If the artist has some engagements in the U.S. between May and August (which is unlikely, but possible), then prior to May she could file a new I-129 petition (which would basically be the old one re-copied and re-packaged) asking for an extension of stay. However, if she does not have engagements to justify her remaining in the U.S. on an employment visa, then prior to May she will need to file an I-539 petition to change her status from O-1 to visitor (B-1/B-2). Of course, to file a new I-129, she will need to pay the USCIS filing fee of $460. To file an I-539, she will need to pay the USCIS filing fee of $370, plus a biometric fee of $85. Biometrics consist of going to a local USCIS office to be photographed and provide fingerprints. However, all local USCIS office are all closed. So, presumably, the I-539 petitions will just get put on hold—which is probably a good thing as she can stay in the U.S. while the petition is pending. I should point out that in 99.99999% of cases, I-539 petitions are denied, so they are really only useful to buy time.
3. Consulates Most of the U.S. consulates around the world have closed. London, for example, is currently not taking appointments until July. We do not know when they will re-open. We asked the U.S. Department of State and were told: “April! No, June? Wait! They’re closed? They’ve always been closed. I mean, open. They’re open now, just closed to the public. Temporarily.”
4. What Happens To A Visa If An Artist Is Laid Off? Here’s another real life scenario:
We are looking for information about the impact of layoff on our O-1 visa holders. The remainder of our performance season has been cancelled. At this time we are continuing to pay our performers as per the schedule that is in their contract. Unfortunately the possibility of a layoff is looming. How would this impact the O-1 visa holders? Are their visa’s invalidated if we have to do layoffs?
Fortunately (sort of), as non-US artists are required to have artist visas to perform in the U.S. regardless of whether or not they are paid, a layoff, per se, does not impact the validity of their O-1 visas. Rather, the issue is whether or not the artist’s services will be required at all. In other words, are we dealing with a cancelled performance or a re-scheduled performance?
If an artist was approved for an O-1visa to perform in a specific engagement or production, and that engagement or production is cancelled, then they are required to leave the U.S. as, unless they were approved for a multi-employer visa, they no longer have a reason to be here. However, if the scheduled performances are merely being re-scheduled for a later date during the validity period of the artist’s existing visa, and the artist’s services will still be needed, then I would argue that they can remain in the U.S. regardless of whether or not they are paid—they just won’t be able to work. In other words, a layoff means they are still employed, just not getting paid.
Whether or not the artist can afford to remain in the U.S. without being paid is another issue entirely…and which leads to the next question.
5. What Is The Impact On A Visa If an Artist Applies for Unemployment or Medicaid? Here’s a hard one:
As you probably already know, all of my concerts until June have been cancelled, thus putting me into a difficult situation financially. I wanted to consult with you whether it would be a good idea for me to apply for unemployment benefits, or is that going to jeopardize my current O-1 status and future potential status?
Unfortunately, this creates two not insignificant problems:
(a) Under Trump’s recently enacted “public charge rule,” applying for any kind of public assistance (unemployment, Medicaid, etc) could be used to deny and/or delay future visas or green cards. When the artist next needs to obtain a new O-1, if he elects to remain in the U.S. and seeks an extension of stay, he would need to disclose that he applied for and/or received public assistance. This will lead to his being required to explain why and seek a waiver. USCIS has indicated that they will be “reasonable” in light of the Covid-19 situation, but we have no idea what that means. I trust USCIS about as much as trust my mother when she asks for my honest opinion. Alternatively, the artist could avoid this question by leaving the U.S. when his current visa expires, applying for a new visa at a U.S. consulate, and then re-entering. However, should at some point in the future he want to apply for a green card, he would need to disclose the public assistance and request a waiver at that time.
(b) The other problem is that O and P visas are “employment-based” visas, which means an artist is only authorized to be in the U.S. on such a visa if the artist has employment. If an artist becomes unemployed, they are not authorized to remain in the U.S. and look for work. They are required to leave. So, applying for unemployment benefits equates with admitting the artist is here illegally.
6. Requests for Evidence and Notices of Intent to Deny USCIS has announced that any petitioner who receives a Request for Evidence (RFE) or Notice of Intent To Deny (NOID) between March 1 and May 1, 2020, will be given an additional 60 calendar days to respond after the response deadline set forth in the RFE or NOID. However, USCIS will continue its policy of employing rabid ferrets to write the RFEs.
7. Can A Visa For A Cancelled Concert Be Reissued? Here’s a question from a dear soul who believes that if we just clap hard enough, Tinkerbell will grow her wings back:
We got an artist approved to perform for us in June. That date, of course, has now been cancelled. However, we have rescheduled the concert for the 20/21 season. Since we already applied for the visa and got it approved, and given that we only had to cancel because of the coronavirus, will USCIS re-approve the visa for the new date without having to file a new petition and go through the process all over again?
As my mother would say: “Bless his heart,” which, in the South, is the kind of thing one says when Charlene gets her head stuck in the fishbowl again…for the 3rd time. No, he will need prepare and submit an entirely new petition, and pay all of the costs and fees again. Because of all the cancellations due to the Coronavirus, the Performing Arts Visa Task Force (a long established coalition of leading arts organizations throughout the field—from the League of American Orchestras to the Association of Performing Arts Presenters) has asked the U.S. government to consider allowing approved visas to be re-authorized to cover re-scheduled dates without having to pay any new filing fees or costs. However, just to be on the safe side, I have added the same request in my letter to Santa Clause as I have greater faith in him making my wishes come true than I do USCIS.
Ok, folks. That’s all I got. Until everything changes tomorrow. As always, continue to check our website and Musical America for more frequent updates.
Stay safe and well!
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 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 email, filing a lawsuit, or doing anything rash!
In short, not much. As you can imagine, this was announced without any details as to how, exactly, this was going to work in terms of screening, implementation, flight schedules, etc. But here what we know so far…
Anyone who has been in one of the 26 European countries in the Schengen zone within 14 days prior to Friday, March 13, 2020, they will not be allowed to board the plane and/or enter the U.S. for the next 30 days.
The 26 European countries in the Schengen zone — 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 and Switzerland.
The ban does NOT apply to the U.K. or Ireland, as well as Croatia, Cyprus, Ireland, Turkey and Ukraine. (No one knows why, though it just so happens that both the U.K. and Ireland both host Trump golf resorts…hmmm.) However, while the citizens and residents of these countries are exempted from the travel ban, if they have visited any of the European countries on Trump’s list over the past 14 days, then they are subject to the FULL 30 day ban.
The ban does NOT apply to permanent residents (green card holders), U.S. citizens, and the spouses, parents or siblings of American citizens or permanent residents, as well as members of the U.S. military and their spouses and children. However, they will be restricted to flying to specific U.S. airports for screening.
In addition, we have just learned today that:
The U.S. embassy in Oslo and Lisbon has temporarily ceased all visa operations until further notice due to the outbreak of Novel Coronavirus Disease COVID-19. It’s highly likely that more embassies and consulates will follow suit.
Denmark just announced it was closing its borders.
We will keep you informed as soon as we know of any changes, on our social media pages (so we don’t bombard you with emails). If you would like to stay updated follow our social media links at the bottom of the page.
Lastly, Trump has asked that everyone remember that he warned us this would happen if we kept letting foreigners into the U.S. and now we should be ashamed of what we have done to his perfect economy.
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 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 email, filing a lawsuit, or doing anything rash!
Depending on the consulate and a person’s nationality, a “renewal by mail” option is “sometimes” available for artists who are applying for the same visa (O, P, F, etc) within 1 year of the last one. For example, a famous conductor who comes to the U.S. each year on O-1 visas and who gets approved for a new one within 12 months of the last one, may insist that he remain on his beach chair on the Costa del Sol and have his manager mail in his passport and visa application to the consulate and a request a waiver of a personal interview. However, the process is discretionary and the consulate can always insist on an interview—which they almost always do anyway these days. While its less likely for them to refuse an interview waiver for an O-1 visa, they will almost always do so for O-2 and P visas. We also know of artists whose passports have been lost in a consulate’s mail room or even sent to the wrong consulate.
We recently had a manager contact us about at artist who was approved for an O-1 visa and who selected the option to apply for her visa by mail rather to come in for an in-person interview…and then had her application refused and was told she needed to come in for an interview anyway. By the time she get her passport back in the mail to her, it was too late for her to schedule an interview, travel to the consulate, and get the visa in time for her U.S. date. So, the date had to be cancelled.
The good news, such as it is, is that having an application “refused” is not the same thing as a “denial” so it will not impact future applications. The bad news is that it make cause delays and subsequent date cancellations as in this case.
Given the less than welcoming nature of the U.S. these days, we recommend that even if one is, in fact, eligible to renew a visa by mail, artists should ALWAYS go to a consulate for an interview anyway. Put down the mojito and tell Maestro Altercocker he needs to go to Madrid.
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 ggartslaw.com
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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 email, filing a lawsuit, or doing anything rash!
Sorry for our infrequent posts. We’ll try and do better. To that end, I thought I’d share an issue that just arose with one of our clients.
A booking agent filed P-1/P-1S visa petitions for a group that has previously been approved. This time, they received an RFE on a single issue: USCIS is asking for proof that the agent is, in fact, has been authorized to act as the petitioner on behalf of the group and its employers.
While some of you may or may not be aware of this issue, and I’d love to blame this on the Screaming Carrot Demon, its actual an issue that has been around for years—though Trump has certainly made it worse. The problem arises from the different ways USCIS examiners interpret the USCIS regulations pertaining to when someone other than a person’s direct employer can file a visa petition on someone else’s behalf.
As a result we have long recommended that any time a booking agent is serving as a petitioner for a group or artist, the visa petition should include two things:
1) An agent appointment authorization from the artist/group acknowledging that the agent has been appointed to serve as the petitioner. This can be on a single sheet of paper that says: I/we authorize [NAME OF PETITIONER] to act as my/our agent for the limited purpose of filing an immigration petition to enable me/us to obtain a work-related U.S. visa classification so that I/we may work/perform in the U.S. as well as to accept service of process in the U.S. on my/our behalf. [NAME OF ARTIST/GROUP][SIGNATURE]; and
2) An agent appointment authorization from EACH presenter/employer of the group acknowledging that they, too, have each appointed the agent to be the petitioner. This, too, need only be a single sheet of paper which says: I/we have engaged the services of [NAME OF ARTIST/GROUP] to perform in the U.S., and authorize [NAME OF PETITIONER] to act for and in our place as agent for the limited purpose of filing an immigration petition to obtain the necessary U.S. work-related visa classification for said artist as well as to accept service of process in the U.S. on our behalf. [NAME OF PRESENTER/VENUE][SIGNATURE]
Do NOT merely include this language within a booking contract or management agreement as, in our experience, USCIS will never find it. Always use separate paper.
Is this a pain in the ass? Yes. However, we do this for ALL of the petitions we file and rarely encounter any difficulties with getting presenters/venues to comply. They already know the system is messed up.
Wishing everyone a wonderful Christmas, Yule, Hanukkah, and all other observances or lack thereof…drink up, as there are lots of potential USCIS changes ahead for the New Year.
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 ggartslaw.com
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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!
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. No 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 if 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 continues 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 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 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 mangers 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:
You can also always find updated information on the “resource” page of our website: www.ggartslaw.com. And if there’s something in particular you want to know about, be sure to contact us!
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 www.ggartslaw.com or www.gginternationalllc.com
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!
By Brian Taylor Goldstein, Esq., Robyn Guilliams, Esq., and Christopher Dowley, Esq.
I hope everyone is having a wonderful summer…because we are just about the ruin it. So be prepared for some serious sunburn, chiggers, sand fleas, and food poisoning as we give you the latest updates:
I. NEW USCIS POLICY ALLOWS VISA PETITIONS TO BE DENIED WITHOUT FIRST ISSUING AN RFE
Effective September 11, 2018, USCIS adjudicators will have “full discretion” to deny visa petitions without first having to issue a “Request for Evidence” (“RFE”) or a “Notice of Intent to Deny” (“NOID”).
This new policy reverses the existing USCIS policy on RFEs, dating back to 2013, whereby, except in extreme cases where a petition was clearly deniable or there was no possibility of approval (such as requesting the wrong visa category), USCIS adjudicators were instructed to issue an RFE or a NOID and provide a petitioner an opportunity to provide additional evidence or correct any deficiencies prior to denying the petition. According to the USCIS Policy Memorandum issued (ironically) on July 13, 2018, the new RFE policy “restores to the adjudicator full discretion to deny applications, petitions, and requests without first issuing an RFE or a NOID, when appropriate.” The new policy memorandum provides the following examples of situations where a petition can be denied without an RFE:
If, in the sole discretion of the USCIS adjudicator, the petition was submitted without sufficient evidence; or
Where the petition does not contain a statutorily required form or submission.
In other words, even simple oversights such as failing to provide a no-objection letter from the correct union, forgetting to submit a contract, or merely forgetting to check a box or sign a form could result in a denial of the entire petition with no opportunity to fix the problem without re-filing the entire petition! You will only know what was wrong AFTER the petition has been denied. While there will remain an opportunity to file an appeal, appeals can take months and, given that an adjudicator has “full discretion”, there is little change of an appeal being granted anyway.
According to the USCIS July 13, 2018 Policy Memorandum:
This policy is intended to discourage frivolous or substantially incomplete filings used as “placeholder” filings and encourage applicants, petitioners, and requestors to be diligent in collecting and submitting required evidence.
Whilst on his way to the arctic to club a baby seal, USCIS Director L. Francis Cissna further explained:
“For too long, our immigration system has been bogged down with frivolous or meritless claims that slow down processing for everyone, including legitimate petitioners. Through this long overdue policy change, USCIS is restoring full discretion to our immigration officers to deny incomplete and ineligible applications and petitions submitted for immigration benefits…Doing so will discourage frivolous filings and skeletal applications used to game the system, ensure our resources are not wasted, and ultimately improve our agency’s ability to efficiently and fairly adjudicate requests for immigration benefits in full accordance with our laws.”
Indulge me to offer my own translation:
“For too long, our immigration system has been bogged down with people from other countries trying to obtain visas. By gaming the system so that petitioners will no longer know in advance why their visa petitions are being denied, we can greatly improve our ability to deny petitions more efficiently and, thereby, continue to make America great.”
Accordingly, we are recommending the following:
If you can’t decide from which union to obtain a no-objection letter, get a no-objection letter from all of them.
Do NOT use letters from peer organizations where there are unions that might possibly be willing to issue a no-objection letter.
Make sure that all itineraries include the FULL names and addresses of all venues, employers, presenters, etc.
If engagements have been booked through an agent, provide a copy of the written agreement between the artist and the agent, as well as proof that each venue, employer, presenter, etc. has authorized the petitioner to be the petitioner.
As there are no longer any second changes, throw everything you can into the petition–background materials on each venue, each award, each expert, and each publication, etc. Make no assumptions. Unless your concert pianist has also been on America’s Got Talent, the USCIS adjudicator will have no frame of reference.
Do not assume that just because an artist has previously been approved, that you can give less evidence the next time. Approach each petition as if it’s the first one.
Given the increased risk having a petition simply denied with no notice, we are also recommending premium processing for most petitions. At the very least, you will know sooner rather than later if you will have to re-file the entire petition.
Should you actually want to read the July 13, 2018 Policy Memorandum, pour a glass of rum and go to the following link:
II. USCIS IS BEING TASKED WITH IMMIGRATION ENFORCEMENT
Officially, USCIS was never meant to be tasked with immigration enforcement. Rather, the purpose of USCIS was strictly limited to the adjudication or administration of immigration benefits, such as processing applications for visas, green cards, naturalization, and humanitarian benefits. Instead, Immigration Customs and Enforcement (“ICE”) was charged with the enforcement of immigration laws and violations. As a result, whilst USCIS regularly reported cases of fraud or misrepresentation to ICE, denials of visa petitions, even in instances where a beneficiary was determined to be a “status violator” (ie: performing illegally in the U.S.) or an “overstay” (ie: remaining in the U.S. after they were supposed to leave), were not.
On June 28, 2018, USCIS issued a new Policy Memorandum whereby,effective immediately, USCIS adjudicators have been instructed to issue a notice to appear before an immigration judge (“NTA”) to all beneficiaries whose lawful status expires while a petition or request is pending before USCIS!
This will have a major impact on artists and students in the U.S. who seek to extend their O or P status, change their employer, or seek to change their status to a different nonimmigrant classification while remaining in the United States. Current Immigration laws allow a person to file a visa petition or an extension or change of status and remain in the U.S. provided the petition is filed while the beneficiary’s underlying nonimmigrant status remains valid. For example, an artist whose O-1 visa is about to expire can file for a new O-1 and remain in the U.S. so long as the new petition is filed before the artist’s current O-1 expires. However, due to lengthy USCIS processing times, it is not uncommon for the artist’s O-1 status to have expired by the time USCIS adjudicates the petition.
Under the new policy, if the petition is approved, there is no problem. But if the petition is denied, under the terms of the new policy, the beneficiary would be issued an NTA and would be required to appear before an immigration judge and, possibly, be subject to deportation proceedings.
According to the USCIS Policy Memorandum, “USCIS is updating its NTA policy to better align with enforcement priorities.” USCIS Director L. Francis Cissna paused from munching on a dead puppy to further comment:
“For too long, USCIS officers uncovering instances of fraudulent or criminal activity have been limited in their ability to help ensure U.S. immigration laws are faithfully executed. This updated policy equips USCIS officers with clear guidance they need and deserve to support the enforcement priorities established by the president, keep our communities safe, and protect the integrity of our immigration system from those seeking to exploit it”
Permit me once again to offer my own translation:
“For too long, USCIS officers have been uncovering instances of foreigners actually entering the U.S. This updated policy equips USCIS officers with the tools needed to support the president’s policies of keeping those people out.”
Accordingly, we are recommending the following:
When an artist wishes to obtain a new O or P visa, advise them to leave the U.S. at the end of the artist’s current O or P classification, wait for the new petition to be approved, obtain a new visa from a U.S. consulate, and then re-enter.
In situations where an artist wishes to change status or extend a current status whilst in the U.S., the petition should be filed far enough in advance so that the petition can be APPROVED before the expiration of the artist’s current status;
The artist should engage in no performance activities (paid or unpaid) in the U.S. after the expiration date of their current visa classification.
Should you actually want to read the June 28, 2018 USCIS Policy Memorandum, pour another glass of rum and go to the following link:
III. ALL VISA PETITIONS FROM CURRENT OR FORMER STUDENTS WILL BE VETTED FOR STATUS VIOLATIONS
Effective August 9, 2018, when any student in F, J, or M status who was admitted to the U.S. for “Duration of Status” (“D/S”) files a visa petition for a different visa (such as an O or P), USCIS adjudicators are being directed to investigate exhaustively whether or not such student is or ever was a “status violator” (ie: performed illegally in the U.S.) or an “overstay” (ie: remained in the U.S. after they were supposed to leave.)
USCIS has never been particularly keen to approve recently graduated students for O visas, particularly if they sought to do so whilst remaining in the U.S. Regardless, under the existing, soon to be replaced, USCIS policy, when a student sought to obtain an O or P visa the student was given “the benefit of the doubt” about how long they were admitted to the U.S. before being considered to have violated their status (ie “performed illegally”) and/or remained in the U.S. after they were supposed to leave (an “overstay.”) A student who is or was in the U.S. on an F, J, or M visa was only determined to be an “overstay” or a “status violator” if USCIS “formally” determined there to be a violation of status. Even then, the student was only determined to be in the U.S. illegally AFTER this formal finding and never retroactively, or without notice. In other words, USCIS was less concerned with whether or not the student had violated their F, J, or M visa than determining whether or not the student was eligible for the O or P visa in the first place.
No longer.
Pursuant to a USCIS Policy Memorandum issued on May 10, 2018, on or after August 9, 2018, USCIS adjudicators have been instructed to pursue what amounts to a “no stone left unturned” policy whereby they are expressly empowered to asses all the available historical and background material collected on each individual student, using all the tools in the toolbox to establish a violation or overstay and consequent accrual of unlawful presence. Specifically, a student will be presumed to be unlawfully present in the U.S., without a formal finding or notice, on the earliest of the following:
The student fails to continue or complete their course of study, or authorized activity (including failing to completing optional practical training plus any authorized grace period);
The student engages in any unauthorized activity—such as performing without work authorization (even for free!)—not permitted by their F-1 status;
The student fails to leave the U.S. the day AFTER the date of completion of study/authorized activity and/or the approved grace period;
The student fails to leave the U.S. on the specific date, if any, listed on their I-94; or
The student stays in the U.S. after the completion of her course of study or authorized activity (including the completion of optional practical training plus any approved grace period)
Moreover, pursuant to the June 28, 2018 USCIS Policy Memorandum discussed previously, such violations will be presumably be reported to ICE.
Traditionally, when a student on an F, J, or M visa comes to us seeking an O or P visa, we have traditionally advised that, so long as the O or P petition is “filed” prior to the student’s graduation or OPT expiration (plus any grace periods) the student will not be considered an overstay. Moreover, so long as the student does not engage in any performances (even for free!), the student will not be considered to have violated their status. However, after August 9, 2018, we will be advising all students on an F, J, or M visa who seek an O or P visa, the following:
Do not ask for a Change of Status from F-1 to O or P. Rather, file a petition and then leave the U.S. whilst the petition is pending.
If they must ask for Change of Status:
Make sure they have significant professional (non-academic) credits and achievements; and
File the petition far enough in advance so that the petition will be approved before the expiration of their current F-1 status or OPT expires.
Should you actually want to read the May 10, 2018 Policy Memorandum, add some bourbon to that glass of rum and go to the following link:
IV. CURRENT UCSIS VISA PROCESSING TIMES RANGE FROM 3 WEEKS TO 3 MONTHS
Visa petition adjudication times at both the Vermont Service Center and the California Service Center are currently wildly unpredictable—currently taking anywhere from 3 weeks to 4 months. We have been able to find no pattern, consistency, or predictability. Moreover, as always, the USCIS case processing times website is completely useless and inaccurate. Please plan accordingly—which, for our office, usually means premium processing and then the whole office heading out for happy hour.
Can you mix vodka with bourbon? Time to find out.
V.THE IRS HAS MADE A SIGNIFICANT CHANGE TO CWA ELIGIBILITY
Not content to let USCIS have all the fun, the IRS has announced that beginning October 1, 2018 nonresident performers must earn $10,000 or more in gross income (within the calendar year) to qualify for a CWA.
The $10,000 threshold applies to individual performers, so if individual members of a group gross less than the threshold amount, they are not eligible for a CWA. But – keep in mind that gross income includes per diem payments, merchandise income and potential overages (not just artist fees!)
Unfortunately, performers who don’t qualify for a CWA due to the income threshold are subject to 30% withholding.
We were recently reminded by the U.S. State Department that approximately a year ago the Trump regime revoked the 2012 Obama Executive Order which called on all U.S. Consulates to shorten visa wait times. So, naturally, there are now longer wait times.
Despite the fact that, officially, artists are not required to bring original I-797 Approval Notices with them when they apply for a visa at a U.S. Consulate, reports abound of consular officers hassling artists and insisting that they must have the original. Some officers are also insisting that the artist bring an entire copy of the visa petition with them. There are also increasing reports of similar requests by immigration officers upon an artist’s entry into the U.S. at the border or an airport. As a result, we are recommending:
That, where, possible, artists bring the original I-797 approval notice with them to the consulate; and
That artists be given copies of the relevant bits of their petition—which would include copies of the forms, itinerary, contracts, and a sample of the evidence.
Any artist seeking to apply for his or her first O-1, should continue to avoid the U.S. Consulate in London at all costs.
Artists from Iran, Iraq, Libya, Somalia, Sudan, Syria, Yemen, North Korea, and Venezuela are not going to be issued visas. Don’t bother. Artists who were born in these countries, but now have citizenship in other countries, or have parents from these countries, or have ever visited these countries, MAY or MAY NOT get visas, but its going to take much longer for them to be processed at the consulate—like 3 – 4 months. In addition, artists who have any relationships, connections, or have made visits to any other countries in the world that the Trump regime does not like, also MAY or MAY NOT get visas, but its going to take much longer for them to be processed at the consulate as well. In short, who the hell knows? We don’t. Stop asking.
Time for TEQUILA!
VII. NEW USCIS I-907 FORM FOR PREMIUM PROCESSING
On June 26, 2018, USCIS revised and issued a new I-907 form to request premium processing. Other than moving things around and making the form longer, nothing really significant has changed. Regardless, starting August 28, 2018, USCIS will only accept the I-907 marked 06/26/18.
Starting to feel woozy.
VIII. SOME FINAL THOUGHTS
For those of you who have managed to read this far, click here for a rare behind the scenes look at how USCIS policy is made:
We are living in challenging times and the rules can change at any time. As always, for official and reliable visa information, we recommend:
4) The US Customs and Border Patrol website: www.cbp.gov
5) The American Immigration Lawyers Association (www.aila.org)
You can also always find updated information on the “resource” page of our website: www.ggartslaw.com. And if there’s something in particular you want to know about, be sure to contact us!
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 ggartslaw.com
All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. Questions will be answered ONLY in future blogs. 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.
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!
For those of you who are unaware, on February 28, 2018 U.S. Senators Orrin Hatch (R-Utah) and Patrick Leahy (D-Vt.), both former chairmen of the Senate Judiciary Committee, have introduced the Arts Require Timely Service Act (ARTS Act); a bill that would require U.S. Citizenship and Immigration Services to provide premium processing (15-day turnaround) free of charge for any arts-related O or P visa petition that it fails to adjudicate within 14 days as required by law. You can read the official press release here:
Many people have already asked us to weigh in on this development.
Be careful what you ask for.
First, and foremost, I must express my sincere awe and admiration with regard to the amazing and tireless arts advocacy of many people, but particularly that of Heather Noonan of the League of American Orchestras, who have been working on this for years. Given that this is actually a bill that is being “re-introduced”, having been previously introduced and rejected, getting it back on the table for re-consideration is nothing less than heroic.
However, as to my thoughts? Let me first share two recent Requests for Evidence (RFE) issued by USCIS which were brought to our attention. One asked for further evidence as to whether or not an artist who led a group which also bore the name of the artist performed a “critical role” with the group. The requested clarification as to an artist’s actual country of nationality where the petitioner wrote the word “German” as opposed to “Germany” on the i-129 form where it asked for “Country of Citizenship.” Given such stellar cognitive abilities, you can forgive my hesitation if my heart does not sing out to the heavens in joy and tearful gratitude over the prospect of merely speeding up a broken, illogical, frustrating, and inane process as opposed to actually proposing anything substantive to fix it. Its like offering the captain of the Titanic the option of actually averting the iceberg and, instead, having him decide merely to speed up the ship and get the disaster over with more quickly.
Its also important to understand that term “adjudicate” does not mean “approve.” An “adjudication” merely means that USCIS will review the petition and either approve it or issue an RFE. When an RFE is issued, the adjudication process is put on hold until the petitioner responds to the RFE. So, if passed, the prosed bill would provide that USCIS either has to approve a petition or issue an RFE within 14 days after a petition is received, or USCIS will be required to spew out some sort of inane dribble free of charge within the next 15 days to stop the clock and buy itself some more time. In short, if you want to guarantee any adjudication in less than 30 days, a petitioner will still be required to pay an additional $1225 for Premium Processing.
Nonetheless, given the lack of any meaningful acknowledgement or support of the arts on the part of the U.S. Government, I am always grateful for any crumbs that are tossed to us, however inadvertently, from the banqueting table. Still, I’d personally rather forgo free expedited USCIS processing time if it meant that, in exchange, USCIS would implement some sort of meaningful screening process when hiring USCIS examiners, as opposed to the current system of requiring only a pulse, potty training, and a patriotic dedication to protecting the American way of life from nefarious violinists.
In the meantime, I’ll take my crumbs, crawl back into my hole, and work on visa petitions.
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 ggartslaw.com
All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. Questions will be answered ONLY in future blogs. 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.
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!
I am a musician on an O-1 visa that my agent got for me. It covers multiple engagements. Last September, I was hired to be a section musician with an orchestra. They have been paying me up until now, but now they are saying that legally they have to withhold my paycheck and can’t pay me because they just realized my visa does not name them specifically and I have to get another one just with their name on it if I want to get paid for the last two weeks. If I don’t, they say they have to fire me. They checked with their lawyer and he says its because their musician contracts require them to pay me as an employee and that my visa only covers independent contractors, not employees. He says that according the USCIS regulations [8 CFR 214.2(o)], employers must be listed on separate O-1 petitions where it says “employer” on the form. Is this true? I thought the O-1 allowed me to work for whomever I wanted because it was a multiple-employer O-1.
Sadly, we get this question a lot. To be fair, U.S. tax and immigration laws and regulations are a huge, big, stinking pile of insanity. Fortunately, most of the folks in our industry who work regularly with foreign artists make at least a valiant effort to figure out the rules as best they can, either by consulting experts or colleagues or through their own research. Unfortunately, there are others, be they forgotten in the bowels of a hugely complex institution or trapped in their own dark worlds of paranoia, anal retention, and over-simplicity, who do not. These include most, but, by no means all, of the following: (1) the international student officers and offices of most schools and universities; (2) the personnel directors of small orchestras; and (3) any non-profit with a volunteer attorney who only practices insurance law, but claims to be an expert on all subjects.
It appears that you have been dragged into the dark world of numbers (2) and, perhaps (3).
The O-1 visa category is not only available for artists, but also for the field of business, science, education, and athletics. Technically, the sodden-witted pignut at your orchestra is correct that, in most instances, an individual with an O-1 visa who works for more than one employer must file a separate petition for each employer. HOWEVER, he or she is ignoring the fact that USCIS regulations 8 CFR 214.2(o)(2)(iv)(D) provides an exception for artists (and ONLY artists) as follows:
In the case of a petition filed for an artist or entertainer, a petitioner may add additional performances or engagements during the validity period of the petition without filing an amended petition, provided the additional performances or engagements require an alien of O-1 caliber.
Moreover, for purposes of work authorization, USCIS does not make distinctions either between full-time and part-time employment or between employees and independent contractors. Why? Because as we try to remind everyone again and again and again and again and again: U.S. law requires anyone who “provides services” in the U.S. to have work authorization regardless of whether or not they are paid for such services. So, as a work visa is required even if an artist performs for free, the manner in which they are paid is irrelevant for immigration purposes.
Admittedly, what adds to the confusion is that USCIS requires the same USCIS form (i-129) to be completed not just for O-1 visa petitions, but for a whole alphabet of other visa petitions as well: E, H, P, L, M, R and Q, among others. Because of the government’s “one-size-fits-all” mentality, the i-129 form uses the broad term “employer” to cover every possible scenario in which one person can engage the services of another. In other words, USCIS does not use the term “employer” to refer exclusively to an “employer/employee” relationship.
The issue of whether or not an individual performing services for another should be paid as an “employee” or “independent contractor” is determined by various federal and state regulations, laws, and authorities, such as the Department of Labor and the IRS. USCIS is part of the Department of Homeland Security. Once it authorizes someone “to work”, it simply doesn’t care about how, or even if, they are paid. That’s not in its purview. Which means that, so long as your O-1 authorizes you to provide services to more than one entity, then you can be paid either as an employee or independent contractor. Your orchestra is not violating U.S. immigration law by paying you as an employee.
Amusingly, your orchestra is actually finds itself in even greater peril by refusing to pay you for work already performed. The same state federal and state regulations, laws, and authorities that determine whether or not someone is an employee or an independent contractor, also make it explicitly clear that it is illegal to refuse to pay someone for work already performed based on a claim that they violated immigration law. Its perfectly acceptable—nay, required—to refuse employment to or fire someone who is not legally authorized to work in the U.S. However, that does not apply retroactively. If the work has been performed, even illegally, the worker must be paid. Otherwise, unscrupulous employers would just hire foreign workers and then refuse to pay them. Work authorization and payment are to very different things!
So, there’s your answer. However, getting your orchestra to understand or accept this reality may not be easy. People in the aforementioned categories prefer simple answers to complex questions and are often loathe to accept nuance. So, here’s simple suggestion: Are you or your orchestra a member of the American Federation of Musicians? If so, stop reading this and call AFM now. Trust me, they will be more than happy to make this matter very simple for the orchestra indeed!
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 ggartslaw.com
All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. Questions will be answered ONLY in future blogs. 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.
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!
Just a quick update for those of you wondering about the arts implications of the revised travel ban:
Aside from adding North Korea and Venezuela (with the latter not actually be a “real” ban) to the list, everything else is pretty much the same as it was…with everyone in the world regardless of citizenship continuing to be subjected to the increased whims and heightened scrutiny of consulate officers and Immigration Border Officers as you have already been experiencing since February of 2017.
So, continue doing what you’ve been doing–including cursing, drinking, and kneeling.
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 
I hope everyone is having a wonderful summer…because we are just about the ruin it. So be prepared for some serious sunburn, chiggers, sand fleas, and food poisoning as we give you the latest updates:
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 
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