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WHY ARE ARTISTS BEING DENIED ENTRY INTO THE US? HOW DID IT COME TO THIS AND WHO DO WE BLAME?

Friday, March 17th, 2017

By Brian Taylor Goldstein, Esq.   

By now, you should all be aware that the incidents of artists and performers from a wide range of nationalities arriving in the United States as visitors (either on visitor visas (B-1/B-2) or through the visa waiver/ESTA program) and being refused entry are growing at an alarming rate. These artists are being pulled aside, subjected to hours of questioning, and, in many instances, being handcuffed and held overnight until return flights become available…all without the benefit of being able to contact anyone or seek counsel.

We should all be angry and outraged. However, the value of general cathartic explosions notwithstanding, it is important to know whom to blame and where to focus all of the outrage and anger.

First and foremost, unlike some artists and others have asserted, no laws or regulations have been changed with regard to the visa waiver/ESTA program. To the contrary, ever since the United States immigration laws were overhauled in the 1990s, it has always been the case that artists are not permitted to perform in the US either on visitor visas or through the visa waiver/ESTA program regardless of whether or not artists are paid or whether or not tickets are sold. In order to perform, artists must have an appropriate artist visa—which, in most cases, is going to be either an O visa or a P visa.

Very often, an artist, manager, or presenter will contact our office in situations where there has been a list minute engagement opportunity and there is no time for an artist to obtain an O or P visa. They will almost always ask whether the artist can perform without an O visa or P visa if the artist does not get paid—or, worse, presume that this is the case. No! Payment—or lack thereof—is not the deciding factor. The deciding factor is whether or not there is an audience.

One of the few exceptions to this counter-intuitive restriction is that an artist may enter the US either on a visitor visa or through visa waiver/ESTA provided the artist’s sole purpose is to audition or perform a showcase for the sole purpose of obtaining future work and engagements and provided ALL of the following requirements are met:

(1) The artist is not being paid;

(2) The performance is closed to the public; AND

(3) The performance is restricted to promoters, managers, presenters, bookers or other industry professionals who book or engage artists.

Merely calling a performance a “showcase” does not make it a showcase. Performing, even for free, in the hopes of obtaining future engagements is not sufficient. Rather, the narrow crack in the otherwise strict prohibition against artists performing without an O visa or P visa was created purely to allow artists to attend booking conferences (such as Arts Midwest, PAE, or APAP) or a traditional audition where the artist performs before a few gruff and aloof producers or directors. If at any time the general public is allowed to attend (even if no tickets are sold), then it is not considered an “audition” or “showcase” and the exception does not apply.  Accordingly, promotional and publicity tours do not qualify either. Similarly, if an artist is entering to perform as part of training program and the performance is open to the public, the exception also does not apply.

As to why such onerous restrictions were ever enacted in the first place, the “official” argument is that it was to protect the United States labor market. True as this may be, it reflects an offensive disregard of the fact that artists are unique and all performances, good or bad, are distinctive. Unlike non-US manufacturing labor who arguably may have similar training and experience as their US counterparts, non-US artists cannot merely be substituted or swapped for a US alternative who just happen to have similar technical abilities. If you have seen one artist, you most definitely have not seen them all. However, without in the least defending these regulations, it is worth bearing in mind that the United States has no Ministry of Culture to advocate policy on behalf of arts and artists. Rather, the arts must rely upon a loose coalition of independently funded arts advocates and institutions whose impassionate pleas are shouted from the wastelands of Whoville. While we also have a National Endowment for the Arts titularly funded by the government, it is purely a granting institution which admirably struggles to disburse crumbs and scraps to the artists crowded at the children’s table—and which, as of today, President Trump has proposed to eliminate entirely.

Nevertheless, for many years festivals, presenters, venues, schools, and others have expanded and relied upon the narrow “audition” or “showcase” exception by providing artists with a letter asserting that an artist is entering to perform an “audition” or “showcase”, is not being paid, and that the audience is restricted only to industry professionals. With only the rarest of exceptions, this usually worked. To be fair, it probably shouldn’t have worked as often as it did, but no harm no foul.

Then came President Trump.

Without having to amend or change any existing laws, the recent Executive Orders have imposed immediate “heightened scrutiny” and “extreme vetting” at all levels of the immigration process by mandating strict enforcement of laws and regulations already in place. (Sadly, these particular directives are not amongst those subject to the recent judicial restraining orders and stays.) As a result, we have entered a new era whereby all immigration officers, examiners, and other officials have now been instructed to “believe none” and “suspect all.”

For those of us in the arts and entertainment field, this means that artists who have hitherto had little trouble entering and performing either on a visitor visas or through visa waiver/ESTA—even in those instances where they were never supposed to do so—are now being stopped, questioned, and turned away. Just as bad, artists such as authors, painters, and designers who are legitimately entering the United States as visitors to attend conferences or to attend performances or exhibitions of works they created entirely outside of the US are now at a greater risk of being turned away merely by admitting that they are artists and do not have an artist visas.

As I was once taught by a senior attorney whom, in retrospect, should never really have been mentoring anyone in the first place, solving any problem first requires the assessment of blame. In this case, as frustrating as it is, it is not entirely appropriate to blame immigration or consular officers who, however aggressively, are being instructed to enforce laws that have always been there to enforce. Nor is it reasonable to presume a vast conspiracy focused on artists from specific countries. Rather, a more reasonable assessment of culpability would be as follows:

(1) The immigration laws and regulations that have always been unreasonable and unduly burdensome for decades with regard to artists, but which have gone unchallenged and mostly unnoticed because they were unenforced without any degree of consistency.

(2) The venues, record labels, managers, and others who offhandedly give artists bad advice with the air of authority, but without the burden of accuracy.

(3) The artists who are all too willing to accept without challenge the venues, record labels, and managers so long as they are being told what they want to hear.

(4) The United States government which, as opposed to targeting artists with the explicit intention of thwarting efforts to promote tolerance and understanding through artistic exchange, is oblivious that the arts exist in the first place, much less serve any purpose.

(5) The White House for boastfully implementing a new paradigm whereby all are presumed guilty until proven innocent.

Aside from continuing to shout, scream, and protest through every available platform, what’s to be done?

(1) Whether you believe an artist requires a visa or not, if it is at all possible for an artist to obtain a visa, do so.

  • Having an O or P visa does not guaranty entry as both consulate officers and immigration offers have the unrestricted authority to deny visas or deny entry at any time for any reason. However, having an actual O or P visa in an artist’s passport will go a long way towards ameliorating the immediate presumption of an immigration officer that an artist arriving as a visitor is doing purely to threaten our way of life.

(2) If an artist legitimately meets the narrow “audition” or “showcase” exception, then the artist needs to be properly briefed and prepared as to what to expect and how best to answer invasive and probing questions in an atmosphere of stress and intimidation

  • This means that, in addition to providing a letter from the festival, presenter, or venue, the artist should also be armed with documentation about the booking conference or audition itself—such as a list of attendees, information about the production or entity for whom the artist is auditioning, etc.
  • Make sure there are no press releases, announcements, or other information on either the artist’s or venue’s website (or anywhere on the internet for that matter) suggesting or announcing that that artist is “touring” or “appearing” in the United States, much less providing a schedule of US engagements—particularly since, legally, there can be no US engagements!
  • The artist should have return tickets already booked to establish that the artist will only be staying in the United States for the time necessary to arrive, audition, and leave.

(3) Review an artist’s prior travel to the United States to make sure they have not previously engaged in any un-authorized performances and, if so, be prepared to address this.

(4) Make sure an artist has at least a few materials (such as reviews or CDs) establishing that the artist is, in fact, an artist.

(5) Whether you’re dealing with immigration, royalties, contracts, or licensing, Artists need to be at the forefront of their own business. Don’t presume the people advising you are knowledgeable or even have your best interest in mind. At the end of the day, if you have to cancel a performance or, worse, get deported, the festival, venue, or manager will move on. Its YOUR career on the line!

(6) Lastly, if an artist does get stopped, pulled aside, and faces the possibility of a refused admission, the artist should voluntarily request to withdraw his or her request to enter the United States and voluntarily offer to return home. Voluntarily withdrawing a request to enter does not count as a “denied entry” and will not blemish an artist’s immigration record for future travel. On the other hand, insisting on entry and then being “denied entry” and forcibly returned can have serious implications on future travel.

We are all on a roller coaster that shows no signs of slowing down. As we continue to hold on to the bar, we also continue to recommend that everyone consistently check with reliable sources (ie: not chat rooms or random google searches) for updates and developments before making any travel decisions, applying for visas, booking foreign artists, or entering to perform on visitor visas or through the visa waiver/ESTA program. We recommend:

1) www.artistsfromabroad.org

2) The USCIS website: www.uscis.gov

3) The US Department of State website: www.travel.state.gov

4) The US Customs and Border Patrol website: www.cbp.gov

5) The American Immigration Lawyers Association (www.aila.org)  

And we will continue to update on our blogs, social media, and newsletters as changes occur.

__________________________________________________________________

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

To ask your own question, write to

lawanddisorder@musicalamerica.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 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!

 

 

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Posted in Artist Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

What In The World Is Going On With Artist Visas as of March 7, 2017?

Saturday, March 11th, 2017

By Brian Taylor Goldstein, Esq.

Here we go again…

On March 6, 2017, President Trump issued a new Executive Order regarding US immigration to replace the previous Executive Order of January 27, 2017. The new Order takes effect on March 16, 2017 and expressly revokes the January 27, 2017 Order (which had been subject to a court issued temporary restraining order anyway.) The new Order…

  • Bans immigrant and nonimmigrant entries for citizens of six designated countries – Syria, Iran, Libya, Somalia, Sudan, and Yemen – for at least 90 days beginning on March 16, 2017. The new Order no longer includes Iraqi nationals in the 90-day travel ban.
  • Exempts certain categories of people, including lawful permanent residents (US “Green Card” holders), current US visa holders, and dual nationals traveling on a passport from a country that is not one of the six designated countries.
  • Confirms that no visa issued before March 16, 2017 will be revoked as a result of the Order, and that any individual with a revoked or cancelled visa as a result of the prior, January 27, 2017 Order is entitled to a travel document for travel and entry to the US. After March 16, 2017, nationals from the list of six countries will no longer receive visas, even if they have been approved for visas by USCIS.
  • Allows for exceptions and case-by-case waivers.
  • Provides that after 90 days, the citizens of these countries can be permanently banned.
  • Provides that the Secretary of State, Attorney General or Secretary of the Department of Homeland Security can at any time recommend that additional countries be added to the list or taken off of the list.
  • Immediately suspends the Visa Interview Waiver Program (VIWP) and effectively mandates in-person interviews for all nonimmigrant visa applicants.
  • Mandates heightened vetting and screening procedures at all levels of the immigration process, particularly immigrants and non-immigrants “who seek to enter the United States on a fraudulent basis.”

While there are other portions of the new Order that impact other areas of immigration, our main focus is on how all of this applies to artists and the Performing Arts. In the case of the new Executive Order, its actually the last two provisions which will have the most widespread impact on foreign artists. Here’s what you need to know:

HEIGHTENED VETTING AND SCREENING PROCEDURES AT ALL LEVELS OF THE IMMIGRATION PROCESS:   

It means that when seeking an O or P visa, regardless of the nationality of an artist, artists  may encounter additional scrutiny and delays at each stage of the process—from  petitioning USCIS for visa approval, to consulates issuing visas, to Immigration Officer’s admitting artists at the border. This applies to artists from any country in the world.

Given that the new Order specifically requires heightened vetting and screening of those “who seek to enter the United States on a fraudulent basis”, there is going to be even  more scrutiny and less forgiveness than ever before with regard to artists attempting to enter the US on visitor visas (B-1/B-2) or through the Visa Waiver Program (“ESTA”). We are already receiving reports of artists being held and detained for hours  upon entering the US to determine whether or not they are performing. Even artists  entering as visitors for the purpose of attending a conference or “performing a showcase” are being pulled aside and, in many cases, being refused entry. Artists entering with B- 1/B-2 visas or through the Visa Waiver Program (ESTA) are being pulled aside the  moment they say that they are “entertainers”, “performers”, or “artists.”

When an individual is held and detained, they are subject to interrogation as well as  demands to inspect their cell phones, luggage, and personal items. Any refusals can be groups for a refused entry, which will then stay on an artist’s record impeding future  visas and travel.

Everyone needs to understand and accept that: Artists cannot perform on visitor visas  (B-1/B-2) or through the Visa Waiver Program (“ESTA”) regardless of whether or   not they are being paid and regarding of whether or not tickets are sold. Except in   the most narrowly defined circumstances, US immigration law has always defined  “work” as it pertains to artists, as any kind of performance. Artists denied entry on the basis of fraud, will have a denied entry on their record, impeding future visas and travel.

Some presenters and venues in the US—particularly festivals and academic institutions  continue to advise artists that O and P visas are not required if an artist is not being paid  and/or if the performance is part of a training program. This is incorrect and always has been.

In addition, while artists with O and P visas, on the average, seem to be experiencing less trouble, even O and P visa holders, as well as green card holders, are being held and  detained in instances where an Immigration Officer believes they are citizens of or traveling from ANY country in the world whom they believe could pose a threat to the  US.

In short (I know, too late), an Immigration Officer has the unfettered authority and  discretion to deny entry to any artist from any nationality for any reason. To what   extent this authority will be exercised remains to be seen.

THE SUSPENSION OF THE VISA INTERVIEW WAIVER PROGRAM (VIWP) 

While it has always been subject to the discretion of each consulate, the VIWP allowed consular officers to waive the interview requirement for applicants seeking to renew nonimmigrant O and P visas within 12 months of expiration of the initial visa in the same classification. The VIWP has been used to waive the interview requirement only for travelers who have already been vetted and determined to be a low security risk and who have a demonstrated track record of stable employment and stable travel.

By suspending the program, all artists will be required to have a personal interview in order to receive a new visa regardless of when their last O or P visa was issued or whether or not they were previously allowed to receive a visa under the VIWP.

Until additional consular staff is hired, Order will place enormous burdens on U.S. consulates and embassies – particularly high-volume consulates – by increasing already extended interview wait times and processing times, wasting limited resources, and potentially decreasing the quality of consular interviews.

HOW DOES THE NEW ORDER IMPACT ARTISTS FROM THE 6 BANNED COUNTRIES (IRAN, LIBYA, SOMALIA, SUDAN, SYRIA, AND YEMEN?  

  • If the artist is a citizen of one of those countries, but already has a US visa or Green Card, then “officially” the ban does not apply to them. However, they should still expect “heightened vetting and screening procedures.” Also, once their visas expire, they will need to leave the US and will not be eligible for new ones.
  • If an artist from one of these countries has not yet been issued a visa by March 16, 2017, they are not going to get one. This includes students.
  • If an artist who is citizen of one of these countries is also a citizen of another country not on the list (for example, a citizen of both Iran and Canada), they WILL be allowed to receive visas and travel to the US PROVIDED the visa is stamped into the passport from the non-banned country and they only travel on the passport from the non-banned country. However, they should still expect “heightened vetting and screening procedures.”
  • The Order does not apply to artists who may have been born in one of the banned countries, but who are no longer citizens. However, they should still expect “heightened vetting and screening procedures.”
  • The Order does not apply to artists who may have been merely visited or performed in one of the banned countries. However, they should still expect “heightened vetting and screening procedures.”

WHAT DO WE RECOMMEND?

  •  All artists, regardless of nationality, she travel to the US with copies of their I-797 visa approval notices and maintain such copies, along with copies of their visas, on their person at all times while in the US. In addition to US Immigration Customs and Enforcement (ICE), state and local police can also demand proof of valid immigration status at any time while an artist is in the US.
  • Artists from all countries should not attempt to enter the US on visitor visas (B-1/B-2) or through the Visa Waiver Program (“ESTA”) except in the most narrow of circumstances. For example, performing at a booking conference (Arts Midwest, PAE, APAP, etc.) where only registered attendees are permitted to attend or performing at a competition or non-public audition are still permitted in visitor status. However, whether or not an Immigration Officer will continue to understand and accept these exceptions remains to be seen. In such instances, make sure such an artist is properly advised ahead of time and travels with extensive supporting evidence.
  • Plan well in advance when submitted visa petitions to USCIS and allow for extra time for US consulates to issue visas.
  • Review an artist’s prior travel to the US to make sure they have not engaged in any un-authorized performances and, if so, plan accordingly.
  • Artists should bring snacks when traveling into the US in case they are held or detained as there is no food available. We recommend beef jerky. But not hummus.
  • Plan and prepare, not panic.

As our office continues to address issues and implications on the front lines, we are relying upon the American Immigration Lawyers Association (AILA), The League of American Orchestras, the US Performing Arts Task Force, and other vital organizations who continue to monitor and report on the situation at all levels. AILA does not believe the new Order will withstand judicial scrutiny since the targeted countries are majority Muslim and the Order fails to provide evidence that nationals of the six countries pose a threat to national security.

As the rules can change at any time, it is critical that you consistently check with reliable sources (ie: not chat rooms or random google searches) for updates and developments before making any travel decisions, applying for visas, or booking foreign artists. We recommend:

1) www.artistsfromabroad.org

2) The USCIS website: www.uscis.gov

3) The US Department of State website: www.travel.state.gov

4) The US Customs and Border Patrol website: www.cbp.gov

5) The American Immigration Lawyers Association (www.aila.org)  

___________________________________________________________________

For additional information and resources on this and other legal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to:

lawanddisorder@musicalamerica.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 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!

 

 

 

 

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Posted in Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

IS SXSW Being Opportunistic of Oblivious?

Friday, March 3rd, 2017

By Brian Taylor Goldstein

The following situation was recently brought to our attention and we felt obligated to comment:

http://www.avclub.com/article/sxsw-threatens-international-artists-deportation-p-251394?utm_source=facebook&utm_medium=ShareTools&utm_campaign=default

https://www.theguardian.com/culture/2017/mar/02/sxsw-immigration-told-slant-contract-trump-travel-ban

http://www.rollingstone.com/music/news/sxsw-responds-to-artist-immigration-controversy-w470167

Since this issue arose, the festival’s Managing Director has issued multiple “updates” and “clarifications” that are disingenuous or, at best, ill-informed.

First, he contends that the contract provision regarding non-work visa violations is merely “telling the acts what immigration (authorities) would do if terms of their visas are violated” and is intended “to inform foreign artists that the U.S. immigration authorities have mechanisms to create trouble for artists who ignore U.S. immigration laws.” However, if this is true, much of the legal information is misleading and inaccurate. Moreover, if SXSW is, indeed, merely trying to “inform” artists and “warn” them about potential immigration consequences, then why do SXSW organizers themselves threaten to notify U.S. immigration authorities if they discover any infractions? When did SXSW become agents of ICE (US Immigration and Customs Enforcement)?

Second, he explains that “all of the harshest penalties threatened in the contract—including notifying immigration authorities—would only be invoked if somebody did something really horrific, like disobey rules about pyrotechnics, starting a brawl, or if they killed somebody” and that this language is “intended to be, a safeguard to provide SXSW with a means to respond to an act that does something truly egregious, such as disobeying our rules about pyrotechnics on stage, starting a brawl in a club, or causing serious safety issues.” While any such actions on the part of an artist or group would most certainly warrant an immediate expulsion from SXSW, as well as untold liability issues, none of them constitute any kind of immigration violation which would warrant SXSW notifying immigration authorities—particularly when that would only result in all non-US artists at the festival coming under scrutiny of ICE.

Lastly, SXSW’s Managing Director claims that that these provisions have always been part of their agreements. Perhaps this is true. However, if that is the case, then not only were these contractual terms poorly and sloppily drafted. And given the current political madness, now was certainly the time to update and amend them.

While it’s easy to presume that SXSW is using the current immigration situation to coerce artists into not performing any unauthorized SXSW performances, it’s far more likely that they are one of many presenters, venues, and festivals who are only too eager to dispense expertise on issues they actually know nothing about. The complexities of immigration issues for non-US artists are confusing and frustrating enough without adding to the melee with misinformation, however well-intentioned, which only causes more confusion.

_________________________________________________________________

For additional information and resources on this and other legal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to:

lawanddisorder@musicalamerica.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 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!

 

 

 

 

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Posted in Arts Management, Contracts, Law and Disorder: Performing Arts Division, Visas | Comments Closed

What In The World Is Going On As Of February 2, 2017?

Wednesday, February 1st, 2017

By Brian Taylor Goldstein, Esq.   

On January 30, 2017 we posted an update to clarify what was going on (at least as of Sunday, January 29, 2017) with regard to President Voldemort’s now infamous January 27, 2017 Executive Order and how it impacts the arts. As you may imagine, as the result of lawsuits and procedural confusion, the situation continues to develop…often hourly. As our office continues to address issues and implications on the front lines, we are relying upon the American Immigration Lawyers Association, The League of American Orchestras, the US Performing Arts Task Force, and other vital organizations who continue to monitor and report on the situation at all levels.

While there are still more questions than answers, the situation is starting to normalize somewhat…until they change. Nonetheless, as of today, here are the most accurate answers to the most frequently asked questions:

Does President Voldemort’s Executive Order and travel ban apply to Citizens of the 7 countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen) who also hold US Visas or Green Cards?

  • Yes.
  • The Department of State has indicated that it is “provisionally” (ie: temporarily) revoking all visas and green cards for nationals from the 7 countries named in the January 27 Executive Order.
  • This does not affect visa holders or green card holders who are currently in the US. They can stay.
  • If a green card holder was out of the US as of January 27, 2017 or travels out of the US after January 27, 2017 and attempts to return, then such individuals ARE subject to the travel ban. However, green card holders are eligible for national interest waivers consistent with the provisions of the Executive Order. According to the Executive Order, absent significant derogatory information indicating a serious threat to public safety and welfare, green card status will be a dispositive factor in case-by-case determinations of whether or not a green card holder may re-enter.
  • So far, only two green card holders from the list of 7 countries have been denied entry: One, who was denied based on a criminal record, and another individual chose to return to Canada and withdrew his request for entry.
  • If a visa holder was out of the US as of January 27, 2017 or travels out of the country after January 27, 2017, they will not be allowed to re-enter at this time.

Does President Voldemort’s Executive Order and travel also apply to students who are citizens of the 7 countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen)?  

  •  Yes.
  • F1/J1/M1 visas are currently temporarily suspended. Individuals who were in the US at the time of the signing of the executive order are not affected by the order.
  • Students who were out of the US as of January 27, 2017 or travel out of the US after January 27, 2017 and attempt to return will not be allowed to return at this time. The Department of State is evaluating whether those who are precluded from returning as a result of the Executive Order will be considered to have maintained their status as F1 or M1 students.

Does President Voldemort’s Executive Order and travel ban apply to individuals who are citizens of the 7 countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen) but who also are citizens of other countries (ie: dual citizens)?

  • No.
  • Travelers are being treated according to the passport they present at the time of entry into the US. For example, if they hold both Iranian and Canadian passports, then, absent significant derogatory information indicating a serious threat to public safety and welfare, they WILL be allowed to enter.
  • However, if an individual holds a visa, the visa stamp MUST be in a passport that is not from one of the 7 countries. For example, if an artist with an O-1 holds both Iranian and UK passports, the O-1 visa must be in the UK passport.

Does President Voldemort’s Executive Order and travel ban apply to individuals who may have been born in one of the 7 countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen), but who are no longer citizens?

  •  No.
  • However, individuals who were born in these and other countries considered to be “at risk”, or still have relatives in these countries, have always been subject to additional security processing and delays at US consulates and upon entry to the US. This will continue.

Does President Voldemort’s Executive Order and travel ban apply to individuals who may have been merely visited or performed in one of the 7 countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen)?

  •  No.
  • However, individuals who have visited these and other countries considered to be “at risk”, have always been subject to additional security processing and delays at US consulates and upon entry to the US. This will continue.

What is the impact of this on artists and individuals from other countries?

  • So far, none.
  • They will be subject to the same inconstant policies and tortuously interpreted regulations as always.

What is the impact of this on USCIS or the processing times at USCIS Service Centers?

  • So far, none.
  • Both USICS Service Centers continue to suffer from high staff turnover and lack of funding. This continues to result in longer processing times and an increase in Requests for Evidence (RFE).
  • While the California Service Center “tends” to process petitions more quickly than the Vermont Service Center, we continue to advice clients to anticipate standard processing to take 3 – 4 months at both service centers. Do not rely on the anecdotal information of others to the contrary!

What is going to happen next?

  •  Who the hell knows? However, according to two “leaked” provisional/proposed Executive Orders, here’s what we anticipate:
    • Further restrictions and clarifications on the limitations of B-1/B-2 (visitor/business) visas and those eligible to enter on visa waivers (Ie: ESTA) with respect to what they can and cannot do in such status. We’ve have said this 1000 times, but we keep getting questions about this: Artists cannot perform on visitor visas and/or on ESTA status. Not for free. Not for education. Not for schools. Not for training. Not if no tickets are sold. Not no way! Not no how! If any US manager, agent, presenter, venue, or academic institutions tells you otherwise—RUN AWAY!
    • Additional restrictions and oversight of students eligible for “practical training” during or after their course of study.
    • Additional countries being added to the list of banned nationalities.

Lastly, because the situation can change at any time, it is critical that you consistently check with reliable sources for updates and developments before making any travel decisions, applying for visas, or booking foreign artists. We strongly recommend:

1) www.artistsfromabroad.org

2) The USCIS website: www.uscis.gov

3) The US Department of State website: www.travel.state.gov

4) The US Customs and Border Patrol website: www.cbp.gov

5) Licensed immigration attorneys

 ________________________________________________________________

For additional information and resources on this and other legal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.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 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!

 

 

 

 

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Posted in Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

WHAT IN THE WORLD IS GOING ON?

Sunday, January 29th, 2017
By Brian Taylor Goldstein, Esq.

Except for those of you who may have been exploring other dimensions for the past few days, almost everyone else on the planet has been following the flurry of recent developments in the US as our country falls into the slipstream of chaos. We felt it was important to clarify exactly what is going on (at least as of Sunday, January 29, 2017) and how it impacts the arts.

On January 27, 2017, Dictator-in-Chief Trump signed an Executive Order that, among other provisions, immediately “suspends” the immigrant (“green card”) and nonimmigrant (Os, Ps, Fs, Hs, etc.) entry of citizens from the following countries for 90 days from January 27, 2017: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Artists from these countries will not be able to enter the US, including those artists who already possess an I-797 Approval Notice or even who have already been issued an actual visa. As of January 29, 2017, those holding green cards may, in theory, re-enter the U.S., but they, too, should expect additional scrutiny, delays, and possible refusals.

It should be noted that the travel ban will not automatically be lifted after the 90 days.

Also, this order not only applies to anyone who holds a passport from any of the 7 designated countries, but also to dual citizens who hold passports from a designated country, as well as a non-designated country. So, for example, if an artist were to hold BOTH an EU passport as well as an Iraqi passport, that artist would be subject to the bar. “Theoretically, dual nationals holding US citizenship remain able to re-enter the U.S., but they should expect additional scrutiny and delays as well.

It is unclear whether or not the travel ban applies to people who are former citizens of the 7 countries or who may have merely traveled to one of these countries. However, they should expect additional scrutiny and delays as well.

Additional changes to the visa rules, regulations, and restrictions have been threatened in the upcoming weeks. However, the expectation is that most of these will apply to H-1B visas (employees with specialized skills and academic degrees), which rarely, if ever, apply to artists and F visas (students), which will apply to artists attending school and training programs in the US. We would also not be surprised if Dictator Trump eventually slams the door again on Cubans, as well.

For now, aside from those artists impacted directly and immediately, everyone else should take a breath and keep the following in mind:

1) Do not panic!

We’re all doing that for you!

 2) Stop relying on ESTA

There is going to be even more scrutiny and less forgiveness that ever before with regard to artists attempting to enter the US on visitor visas (B-1/B-2) and/or ESTA status. We’ve have said this 1000 times, but we keep getting questions about this: Artists cannot perform on visitor visas and/or on ESTA status. Not for free. Not for education. Not for schools. Not for training. Not if no tickets are sold. Not no way! Not no how! If any US manager, agent, presenter, venue, or academic institutions tells you otherwise—RUN AWAY!

 3) Plan ahead. This has always been important, but now it has become critical. In other words, don’t schedule any quick connecting flights or wait until the last minute to file visa petitions and schedule consulate interviews.

Lastly, because the situation can change at any time, it is critical that you consistently check with reliable sources for updates and developments before making any travel decisions, applying for visas, or booking foreign artists. We strongly recommend:

1) www.artistsfromabroad.org

2) The USCIS website: www.uscis.gov

3) The US Department of State website: www.travel.state.gov

4) Licensed immigration attorneys

_________________________________________________________________

For additional information and resources on this and other legal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.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 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!

 

 

 

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Posted in Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

CHRISTMAS PRESENTS FROM USCIS

Tuesday, January 3rd, 2017

By Brian Taylor Goldstein, Esq.   

When we woke up Christmas morning, we discovered that the Grinch at United States Citizenship and Immigration Services (USCIS) had left two surprises in our stockings:

1) NEW FILING FEES

Effective as of December 24, 2016, the filing fee for all O and P petitions is now $460. All petitions postmarked or received by USCIS on December 23, 2016 or later must include the new fee or the petitions will be rejected.

2) NEW FORMS

Effective as of December 24, 2016, USCIS updated many forms, including Form I-129—the form used for O and P petitions. The new edition of Form I-129 is marked “12/31/16”. USCIS will continue to accept old forms until February 21, 2017, but all petitions postmarked or received by USCIS on February 21, 2017 or later must have the 12/23/16 edition of Form I-129 the petitions will be rejected.

  • Read the new Form I-129 carefully. When USCIS updates forms, it rarely asks for new information, but often re-numbers and moves around the old blanks and questions for no apparent reason.
  • Because USCIS can amend forms without notice, ALWAYS download a fresh form directly from the USCIS website. www.uscis.gov/forms. NEVER use an old form, a form you used the “last time”, or a form you obtain from any other source.

The first one we knew was coming, but the second was a complete surprise to everyone!

_________________________________________________________________

For additional information and resources on this and other legal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.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 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 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!

 

 

 

 

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Posted in Law and Disorder: Performing Arts Division, Visas | Comments Closed

USCIS Announces Fee Increase for Artist Visas!

Monday, October 24th, 2016

It is with the deepest bewilderment and frustration that we are compelled to announce:

USCIS HAS IMPLEMENTED A FEE INCREASE FOR VISA PETITIONS

On Friday, October 21, the US Department of Homeland Security announced that it has approved the request of United States Citizenship and Immigration Services (USCIS) to increase the fee for US visa petitions from $325 to $460. The new fee is scheduled to be officially published in the Federal Register on Monday, October 24, 2016 and will be effective 60 days later. This means that:

Effective December 24, 2016 the filing fee for all I-129 Petitions for O and P visas will be $460

Any petitions received after December 24, 2016that do not include a filing fee of $460 will be rejected!  (Merry Christmas from our friends at USCIS!)

The Fee for Premium Processing will remain $1225 per petition.

As a reminder, standard processing continues to range from 3 – 4 months!

For the curious or masochistic among you, on Monday, October 24, 2016 you’ll be able to read all 157 pages of the official notification at:

https://www.federalregister.gov/documents/2016/10/24/2016-25328/us-citizenship-and-immigration-services-fee-schedule

Anyone who believes that this fee increase will herald improved services and timely adjudication of visa petitions will be sadly disappointed!

_________________________________________________________________

For additional information and resources on this and other legal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.com

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

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!

 

 

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Posted in Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

Beware of Wolves In Expert Clothing!

Thursday, March 3rd, 2016

By Robyn Guilliams, Esq.   

Dear Law & Disorder,

I am a member of a band in Canada, and we do quite a few performances in the U.S. each year.  Our accountant has always told us that we don’t need to file income tax returns in the U.S., because the band is incorporated, and also because our U.S. fees are exempt from tax in the U.S. under the U.S. / Canada tax treaty.  We haven’t had any problems for the past four years, but now the IRS is contacting each of the venues for our U.S. shows, and telling them that they have to withhold tax of 30% of our gross.  The IRS also says that each band member must file individual U.S. tax returns for the past seven years, AND that our corporation doesn’t shield us from U.S. taxes.  Help!  Our Canadian accountant claims that he is an expert regarding U.S. taxes, but I’m worried he might not be.

Oh dear – I’m sorry to hear about your tax mess.  It certainly sounds as if your Canadian accountant is no expert!  I’m afraid I hear this sort of story quite often.  Many of our clients have come to us after a so-called “expert” handled their U.S. taxes (or visas) and got them into a world of trouble with the IRS (or USCIS).

The IRS is correct in telling you that any nonresident individual who works in the U.S. must file an individual U.S. tax return.  (There are a few VERY LIMITED exceptions to this rule, but none apply here.)  You may owe no tax.  Perhaps your net income was below a certain limit (or sadly, nonexistent), or perhaps you qualify for an exemption from U.S. tax under the U.S. tax treaty with Canada.  Still – you must file a return to report your income!  After a certain amount of time, you lose the right to deduct your expenses (i.e., you’ll be taxed on your gross income), and you’ll lose your right to claim a tax treaty exemption.

U.S. tax laws and regulations are extremely complex, especially concerning taxation of nonresidents.  As an example, this regulation is just one of many concerning nonresident tax withholding. Welcome to my world!

A knowledgeable tax advisor can help an individual to reduce his or her tax liability, which may save a performer or group a substantial amount in U.S. taxes.  On the other hand, an incorrectly prepared return can trigger an IRS audit!  At the moment, I’m working with five – FIVE – nonresident clients who are being audited.  In each case, the return was prepared a self-professed “expert”, and it included numerous errors, including mischaracterizations of income and/or expenses, claiming exemptions or deductions to which my client was not entitled, and failing to include required schedules and attachments.

Here are a few helpful hints for those in search of assistance in preparing a U.S. nonresident (or any other) return:

  • Check out the IRS’s “Tax Tip” on choosing a preparer at https://www.irs.gov/uac/Choose-Your-Tax-Preparer-Wisely.
  • Before hiring any tax preparer, check his or her credentials on the IRS website at http://irs.treasury.gov/rpo/rpo.jsf.
  • Be aware that, by law, anyone who receives payment to prepare a tax return is required to obtain a Preparer Tax Identification Number (PTIN) from the IRS, and to sign and include their PTIN on all client returns.  A PTIN always begins with “P” and is followed by eight numerical digits.  If your preparer does not have a PTIN – run away!

I hope this is helpful to you!

__________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook legal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.com

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

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!

 

 

 

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Posted in Central Withholding Agreements, Law and Disorder: Performing Arts Division, Taxes, Touring, Uncategorized, Visas | Comments Closed

International Touring: More Tales From The Front Lines

Thursday, December 10th, 2015

By Brian Taylor Goldstein, Esq.   

I realize there are other equally important issues out there than visas and international touring. However, in the wake of the recent terrorist attack in California, and as U.S. politicians and political candidates roll out a “Keep the Hate Alive” campaign, we are constantly receiving alarming updates from clients as well as from the American Immigration Lawyers Association of artists encountering new obstacles and challenges. Here are the latest changes and challenges you need to be aware of:

1.  A Visa Cannot Be Valid Beyond The Dates In The Approved Visa Petition

When a visa petition is approved by USCIS, it is approved for a specific classification period. When an artist then goes to a U.S. Consulate to apply for her or her visa, the visa issued is supposed to reflect the classification period of the approved petition. For example, if a violinist is approved for an O-1 classification period of August 1, 2015 to July 31, 2016, then the O-1 visa stamped into her passport should reflect an expiration date of July 31, 2016. If you examine an O or P visa, you will most often see the letters “PED” followed by a date. “PED” refers to the “Petition Expiration Date.” The PED date “should” coincide with the expiration date of the visa itself.

Unfortunately, some U.S. Consulates have erroneously been issuing O-1 visas that expire beyond the classification period of the approved petition—in some cases, O-1 visas have been issued for with a validity period of up to five years in the future! If this happens, your artist has not won the immigration jackpot! Under U.S. law, the maximum validity period of an O-1 visa for an artist cannot exceed three years. Moreover, it cannot exceed the classification period of the approved petition.

Recently, a prominent artist was turned away because she attempted to enter the U.S. under just such circumstances. A visa petition had been filed for her in 2014 and the petition was approved for an O-1 classification period of 8 months. However, the U.S. Consulate issued her an O-1 visa that did not expire until 2019. She and her management reasonably presumed that this meant she was free to use her O-1 visa until 2019 and no further visa petitions were required. Indeed, until recently, she had been entering the U.S. on the visa ever since 2014 without any trouble. Her past entries were the result of luck and inadvertence on the part of U.S. Immigration Officers at the port of entry. This will no longer be the case. All U.S. Immigration Officers will be scrutinizing all visas far more closely.

When USCIS approves a visa petition, it issues an I-797 Approval Notice with the specific dates of the approved visa classification period. If you or your artist ever receives a visa from a U.S. Consulate that expires beyond the dates of the classification period or beyond the PED date on the visa, ignore all dates beyond the PED date! Assume the visa expires on the PED date and do not use it for any work or travel beyond that date.

(For those of you who are actually interested in legal minutiae, there ARE, in fact, legitimate categories of 5 year O and P visas—they just don’t apply to artist categories. This is why the consulates can get easily confused.)

2.  All Artists Should Travel With A Copy of Their I-797 Petition Approval Notice

Another artist was recently detained at a U.S. airport for attempting to enter the U.S. on an erroneous “5-year O-1 visa.” Ultimately, he was permitted to enter only because he happened to have a copy of his I-797 O-1 Petition Approval Notice indicating that his upcoming U.S. engagement was within the approved classification period. However, he was reminded not to travel on his O-1 visa after the expiration date of the classification period.

Earlier this week, an artist was actually refused entry on his P visa because a U.S. Immigration Officer claimed that he needed to have a copy of his I-797 approval notice. The U.S. Immigration Officer was wrong. The artist had to fly home and be booked on a return flight to the U.S. the next day. Aggravatingly, but not surprisingly, when the artist flew back to the U.S. the next day with a copy of his approval notice, the U.S. Immigration Officer on that occasion didn’t even ask for a copy of the approval notice and the artist was admitted without any questions.

Also this week, a Canadian artist arrived in the U.S. with a copy of her I-797 approval notice (which is all that is required for Canadians) and was refused entry because the U.S. Immigration Officer claimed that she needed to have the original I-797 approval notice. The U.S. Immigration Officer was wrong on this occasion as well. Fortunately, a supervising officer was able to step in and resolve the matter so that the artist was ultimately able to enter.

Except for Canadians, artists and others are not required to travel with a copy of their I-797 petition approval notices—much less the original I-797 approval notice itself. Nonetheless, given that U.S. Immigration Officers have been placed on high alert (without always knowing exactly what they are looking for), we are recommending that all artists travel with a copy of their I-797 approval notice. Should any artist be asked for an “original” approval notice, he or she should calmly and politely ask to speak with a supervising immigration officer. More often than not, the supervising officers are better trained than the officers assigned to the inspection desks.

3.  Changes To The ESTA/Visa Waiver Program

Congress is in the process of adding additional restrictions to the Visa Waiver Program—the program which permits citizens of 38 countries to travel to the United States for business or tourism for stays of up to 90 days without a visa. This is often erroneously referred to as an “ESTA visa.” The term “ESTA” stands for “Electronic System For Travel Authorization” and is merely the registration process through which an individual indicates their intent to enter the U.S. without a visa. It is not a visa. This is important because artists are required to have a visa whenever they enter the U.S. to perform—even if they perform for free; even if no tickets are sold; even if they are performing for a non-profit; even if they are performing for a festival; or even if they are performing for a college or university. In short, performers can never enter the U.S. to “perform” under the Visa Waiver Program.

While most of the propose changes to the Visa Waiver Program should not have any impact on artists (unless the artist is from or has ever travelled to certain counties in the past 5 years), United States Customs and Border Patrol has already begun significantly seeking out artists who may be registering for ESTA and attempting to enter the U.S. on the visa waiver program with the intention of performing. We are getting almost daily reports of artists being stopped, refused entry, and having their ESTA/Visa Waiver privileges revoked for life!

I cannot emphasize this enough: any artist who attempts to enter the U.S. under the Visa Waiver Program for any purposes that involves actually performing does so at his or her own peril!

The only limited exceptions—and they are very narrowly construed—are competitions, auditions (including non-public showcases at arts conferences) and speaking (but not performing) at a college or university.

4.  There Continue To Be Significant Delays In Processing Visa Petitions  

USCIS is presently taking a minimum of 8 – 10 weeks to process visa petitions at both the Vermont and California Service Centers and there appears to be no end in sight to these delays. This means that, as of today, if you need to have an artist enter the U.S. any earlier than March 2016, you need to pay the additional $1225 for premium processing. (The official visa processing times that USCIS posts on its website have always been purely propaganda and should always be disregarded as such.)

On the bright side, dealing with international touring at the moment makes all those other topics we write about–cancellations, copyright infringement, taxes, commission disputes–a little less daunting.

__________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook legal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.com

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

 

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!

 

 

 

 

 

 

 

 

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Posted in Artist Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

International Touring: A Report From The Front Lines

Thursday, November 19th, 2015

By Brian Taylor Goldstein, Esq.

As the U.S. Legal Advisor to the International Artist Managers’ Association (IAMA), I’ve been asked to prepare an update on a variety of current issues involving international touring at the next membership meeting in London on November 27, 2015. Not only do I adore IAMA, but as this would provide a lovely excuse for my wife and I to avoid having to spend Thanksgiving with either of our families, I was more than happy to agree. Robyn Guilliams and prepared this report, I thought I would share it with all of you…

Visa Stercus

1.  USCIS is presently taking a minimum of 8 – 10 weeks to process visa petitions at both the Vermont and California Service Centers. This means that, as of today, if you need to have an artist enter the U.S. any earlier than March 2016, you need to pay the additional $1225 for premium processing. (The official visa processing times that USCIS posts on its website have always been purely propaganda and should always be disregarded as such.)

    • As a reminder, visa petitions can be filed up to one year in advance of the performance date.

2.  For those of you who have Canadian musicians eligible for P-2 visas, we are receiving reports that Canadian AFM is experiencing a backlog in preparing filing petitions. This is in addition to the current USCIS processing time of 8 – 10 weeks.

3.  I’ve said this before, but the message not getting through, so its worth repeating. ARTISTS CANNOT DO ANYTHING IN THE U.S. ON A TOURIST VISA OR ESTA (Visa waiver) STATUS!!  Please stop listening to the colleges, universities, and festivals that tell you otherwise. They have nothing to lose other than perhaps having to find a replacement artist. On the other hand, I have recently learned of two artists—one from Germany and the other from Spain—who have had their ESTA status permanently revoked because they tried to enter the U.S. in ESTA status to perform in the U.S. Both artists had entered multiple times in the past and one were merely entering to “perform” a master class.

    •  It doesn’t matter whether an artist is paid or unpaid, whether the concert is free, or whether the performance is for educational purposes. They must have an appropriate visa—most often an O or P visa. United States Immigration Officers are taking this very seriously.

4.  In preparing visa petitions, please start collecting and providing the evidence USCIS wants as opposed to giving them what you have lying around in your press package. The days of being able to supply a bio and a few press articles are long gone and we are seeing more and more visa denials and delays because of this.

    •  I recently, and with much regret and sadness, had to advise a client to re-cast a role because the artist’s European management was simply refusing to cooperate in our efforts to obtain a visa for the artist. (In case that manager is reading this…no, USCIS will not “just google the artist to find out how famous he is!”)

Tax Stercus

1.  For those of you waiting to receive a refund check from the Internal Revenue Service (IRS) for a non-U.S. artist who has had 30% withheld from their gross engagements fees and are due a tax refund, please be advised: the check is NOT in the mail, and won’t be for the foreseeable future. The IRS has added an extra layer of scrutiny to nonresident tax returns involving refunds. Aside from the usual 2 to 3 month processing time, there is a second review to be sure that everything on the 1042-S form is accurate and complete.  If the IRS senses ANYTHING off, the taxpayer will receive a letter asking for more info. To be fair, the IRS has announced that it will be paying interest on all overdue refund checks. To be practical, it doesn’t matter how much interest they offer to pay if, in fact, they never issue the refund.

    • Bottom Line: There is currently a very good chance that if 30% is withheld from an artist’s engagement fee, the artist will not get that money back…or, at least, not for the foreseeable future. Please plan cash flow accordingly.

2.  A Central Withholding Agreement (CWA) is still the best way of avoiding or reducing the mandatory 30% withholding required from all engagement fees for non-U.S. artists. To be eligible for a CWA, among other requirements, an artist must have filed a U.S. tax return for each prior year in which they have ever performed in the U.S.– even where no tax was owned. If an artist has not filed past U.S. tax returns, he or she will be required to file them as a prerequisite to obtaining a CWA. Unfortunately, we are seeing a sharp increase in the instances where filing such past tax returns is triggering an IRS audit in which they are requesting documents and records from the artist’s world-wide income.

    • In this one particular area, the IRS has displayed a remarkable degree of efficiency in identifying artists who have simultaneously made the least amount of money and kept the least amount of records to prove it.

3.  Obtaining Social Security Numbers (SSNs) and Individual Tax Payer Identification Numbers (ITINs) continue to be a challenge. While SSSs are not any easier for an artist to obtain, they have not become harder. ITINs, on the other hand, have become increasingly difficult, if not impossible, to get. Despite both staffing and budget cutbacks, the IRS has been requested to scrutinize ITIN requests more closely—particularly with regard to proof of identity. For most non-US residents, the most obvious and best proof of identity is a copy of their passport. However, the IRS lacks the resources and training to evaluate how to tell legitimate passports from forged ones. As a result, the IRS is now only accepting copies of passports that have been certified by the actual agency that issued the passport. However, even when this is provided, we are seeing the IRS send notices requesting that the actual, physical passport be sent to them instead. DO NOT DO THIS! You will never see that passport again!

    • There IS one option for some Europeans:  There are IRS offices located in the U.S. Consulates in Paris and London. One can go to these offices and request an ITIN in person (with an original passport, which the IRS will review and return on the spot.)  HOWEVER – one can obtain an ITIN only if one has an “immediate tax need”, such as filing a return. So, if requesting an ITIN in the Paris or London Consulates, one must also bring a completed tax return in hand, ready to file.

4.  We are seeing a large number of U.S. presenters–especially those based at colleges and universities—insisting that non-U.S. artists are legally required to have either a SSN or ITIN in order to perform or get paid in the U.S. Please be advised: There is no such law! While such numbers may make book keeping and accounting easier for the presenter, there is no law that requires an artist to have either one. Not only are SSNs and ITINs not proof of work authorization, but as we addressed above, many artists will be unable to get them in advance—if ever.

5.  Canada requires 15% withholding for gross engagement fees of non-Canadian performers performing there (similar to the 30% withholding requirement in the U,S.) Canada Revenue allows performers to file a waiver/reduction request to reduce/waive the withholding (an R-105 request). On their website, Canada Revenue indicates that the deadline for filing such a request is 30 days prior to the first payment due.  However, it’s taking them MUCH longer to process the requests. So, we are recommending that you file your request with them AT LEAST 60 days prior, or earlier, if possible.

General Travel Stercus 

1.  There is nothing new to report with regard to the ban on bringing musical instruments into the U.S. that contain ivory or other protected materials. United States Customs and Border Patrol isn’t strictly enforcing this with any degree of regularity. However, if any orchestras are touring and don’t want to take the risk, we are recommending that they contact Heather Noonan (hnoonan@americanorchestras.org) at the League of American Orchestras (http://americanorchestras.org) who is among the leading and most effective legislative arts advocates in the U.S. and is happy to talk to them about the “Instrument Passport” process.

    • The League and others are continuing to lobby for specific amendments, including exemptions to the rules for “personal effects” (which would include carry-on musical instruments).

2.  There has been some recent concern about Amtrak, the U.S.’s ersatz rail service, implementing a new policy requiring additional seats to be purchased for oversize musical instruments which cannot fit into overhead compartments. To date, this policy has been posted, but not enforced. We are recommending that artists and ensembles that intend to use Amtrak to travel to engagements within the U.S. check with an Amtrak representative in advance of the tour…and then be prepared for whatever they are told in advance to then be either incorrect or disputed by Amtrak at the actual time of travel.

Other Stercus

1.  When negotiating fees for U.S. engagements, please remember to specify the currency in which the artist is to be paid, including exactly how and when the exchange rate is to be calculated. We are seeing an increased number of misunderstandings over this point.

    • At the same time, use this as an opportunity to clarify any other costs or deductions (such as taxes, visas costs, hotel, travel, etc.) which either are or are not to be included as part of the engagement fee.

2.  Too many people are still relying on general, vague, boilerplate, or unspecific contractual language to take the place of actual negotiation. Do not rely on the misguided belief that there are standard legal terms and procedures that magically govern engagements and bookings when words fail. If you want something, or don’t want something, say something—or, preferably, write it down.

3.  When dealing with performances of new works or contemporary music, bear in mind that licensing laws differ. What’s in the public domain in Europe may not be in the United States. Even a re-arrangement or re-orchestration may not be permissible in certain countries.

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For additional information and resources on this and otherGG_logo_for-facebook legal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.com

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

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THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

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Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Taxes, Touring, Visas | Comments Closed

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