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Archive for the ‘Visas’ Category

A Secret About Passports

Thursday, November 14th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

I have a question about a visa I am working on. This is one of those 0-1/0-2 visa things. The person getting the 0-1 is fine and dandy, but the person who is getting the 0-2 just got French citizenship and is waiting for her passport – hopefully here soon, but I have to get this visa petition in really soon. Can I submit a petition without a copy of her new passport, which she is waiting on? Or does that absolutely have to be in the packet? I think she has the number of the passport that’s coming, but just not the physical booklet so that she can make a copy for me.

You should submit the petition with a copy of the OLD passport. A beneficiary does not need to show up at the consulate with the same passport that was used for the petition. There are many occasions when an artist will get a new passport between the time a petition is submitted and the time they actually go in for their consulate interview. So long as they show up at the consulate with a valid passport (and the name and birth date are the same) that’s all they care about.

I’ll let you in on a little secret: USCIS does not require passport copies to be submitted with a visa petition. So you may be asking yourself: “Then why should I ever bother including a copy of the passport in the first place?” I’ll tell you—to cover your butt! More specifically, as insurance against your mistakes or, more likely, mistakes made by USCIS.

As you are doubtlessly aware, each I-129 visa petition has a section where you enter the personal information of the artist—or, in the case of a group where there are multiple artists, you attach a beneficiary list where you provide the personal information for each member of the group. A clerk in the USCIS office will use this information to prepare the I-797 receipt notice as well as the all-important I-797 approval notice.

There are many opportunities to make typos on I-129 petitions. Most commonly, USCIS requires all birthdates to be entered into the MM/DD/YY format when most other countries around the world write dates in the DD/MM/YY format. Typos can also occur in the case of multiple middle names or unusual or uncommon spellings. If the visa petition includes a copy of the artist’s passport, USCIS will cross-reference the names and personal information listed on the I-129 with the data on the passport. If there are any discrepancies, they will use the information on the passport.

When an artist goes to a U.S. Consulate to apply for his or her visa, the name and birthdate on the artist’s passport must match EXACTLY the name and birthdate written on the I-797 approval notice. While some consulates will make an effort to sort out a discrepancy, others will simply reject the application and require the artist to obtain an amended I-797—which can often mean re-filing the entire visa petition, which includes incurring new filing fees. Providing USCIS with a copy of the artist’s passport can be a critical safety check. Also, in the event USCIS makes a mistake in listing an artist’s name or birthdate on the I-797 approval notice, but was given a copy of the passport with the correct information, USCIS will issue an amended I-797 without requiring you to re-file a new petition.

It doesn’t matter whether or not the passport provided with the visa petition is current or even valid. All that matters is that, at the time the artist appears at the U.S. Consulate, he or she presents a valid passport with the same name and birthdate as on the passport included with the visa petition.

Congratulations! You have just been given a piece of arcane information known only to the highest initiates!

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

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

All questions on any topic related to legal 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.

__________________________________________________________________

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!

Tags:approval notice, Brian Taylor, Goldstein, passports, petitions, uscis, valid passport, visa petition
Posted in Agents, Artist Management, Law and Disorder: Performing Arts Division, Visas | Comments Closed

Oh, Canada!

Thursday, October 31st, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

I represent a performance group from Canada who will be touring the United States. Three of the members are Canadians, but two are not. I have applied for a P-1 visa. Because the group is from Canada, can they enter the US just with the approval notice or do they first have to go to the consulate and get actual visas in their passports?

There more to Canada than just poutine, health care, and HM The Queen on the currency. Canadians are also the only folks who are not required to have physical visas to enter the US.

Canadian artists must still file visa petitions with USCIS and be approved for either O or P visa classification. (Like artists from the rest of the world, Canadian artists cannot perform in the US as visitors—even for free!). However, once the visa petition has been approved, a Canadian artist does not have to go to a US Consulate, pay a visa application fee, and receive a physical visa in his or her passport. Instead, a Canadian artist can enter the US with only their passport and a copy of their USCIS visa approval notice. (Technically, a Customs and Border Patrol (CBP) officer can verify the approval through the USCIS database and does not need a copy of the approval notice. However, for obvious reasons, do NOT rely on this. Artists should always bring a copy of the actual approval notice, as well as a copy of the visa petition itself, just in case.

This unique privilege only applies to Canadian citizens. It does NOT apply to Canadian permanent residents (aka “Canadian landed immigrants”) or anyone who just happens to be passing through Canada en route to the US.

So, in your case, if the three Canadian members of your group are Canadian citizens, then they can proceed directly to the airport or border-crossing and enter the US with only their passport and their visa approval notice. The other 2 members of your group will need to make an appointment at a US Consulate and go through the visa application and issuance process. Apply early…US Consulates in Canada are notoriously backed up!

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:approval notice, Brian Taylor, canada, canadians, citizens, copy, Goldstein, passports, petitions, Tour, uscis, visa application, visa approval, visa petition, visas, visitor
Posted in Agents, Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

Does The Government Shut Down Also Shut Our Doors?

Thursday, October 3rd, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

I have several visa petitions pending as well as applications for Central Withholding Agreements. What impact will the government shutdown have? Do I need to be worried?

That depends on whether or not the lack of an operational government worries you. Granted, it hasn’t been that particularly operational for quite some time. Whenever my computer becomes non-functional, I find that shutting it down and turning it back on again sometimes helps. Perhaps this will have a similar effect. In the meantime, short of accepting the fact that it may be time to consider putting HM The Queen on our stamps and currency, here’s what we’ve got to work with:

Obtaining a visa involves three government agencies: (1) United States Citizenship and Immigration Services (USCIS), which reviews and (theoretically) approves visa petitions; (2) The United States Department of State which operates the U.S Embassies and Consulates where artists take their petition approvals, are interviewed, and apply for visas; and (3) United States Customs and Border Patrol which monitors all ports of entry and (more often than not) admits artists into the country. Applications for Central Withholding Agreements, on the other hand, are processed by the Internal Revenue Services (IRS).

1. USCIS:

Because USCIS charges fees for visa petitions, it is not entirely dependent on

Congressional funding. As a result, at least for the immediate future, USCIS will remain open and will continue reviewing visa petitions with the customary unpredictability and quirky efficiency we have all learned to expect. However, visa petition fees do not cover all of USCIS’s operational costs. As a result, if the shutdown continues, you can expect to see increasing delays and slower processing times.

In the category of “every cloud has a silver lining”, a large number of petitions for non-arts related employment visa cannot be processed because they involve other federal agencies, such as the Department of Labor, which are completely closed. As a result, at least in the immediate future, you may actually see speedier processing times for O and P petitions as USCIS examiners find themselves with less petitions to review.

2. U.S. Department of State (U.S. Consulates and Embassies):

Like visa petitions, visa applications and interviews at U.S. Consulates and Embassies, are “fee-based” and are not entirely dependent on Congressional funding. So the good news, such as it is, is that most U.S. Consulates and Embassies will continue interviewing applicants and processing visas…so long as the buildings remain open. That’s right, while consular services may continue, the longer the shutdown continues, the more likely that that staff support, security and other services will be cut off and the buildings and embassy compounds in which the consulates are located may be forced to close or restrict access.

Another concern is that, even where USCIS has approved a visa petition, citizens from certain countries (and you know who you are) require additional security clearances and background checks before the consulate can issue the visa. As other U.S. agencies are required for such clearances and checks, if these agencies close or shutdown, the visa applications dependent on these clearances cannot be processed.

As each U.S. Consulate maintains its own website, the best advice is to continually visit the website of whichever U.S. consulate you need to determine whether or not that consulate is open and functional. You can link to all consulate from the Department of State’s website: www.state.gov

3. U.S. Customs and Border Patrol:

As their functions constitute law enforcement, CBP officials are considered “essential personnel.” As result, all borders and ports of entry will remain open and fully operational and there should be no immediate impact on the ability of visa holder to enter the U.S. However, as the shutdown progresses, staffing could may become more limited, resulting in longer lines and grumpier than usual CBP inspectors—especially given that “essential personnel” have the honor of being required to work without the requirement of being paid. Accordingly, you should plan connecting flights accordingly.

One additional note of concern is that the CBP website will not be maintained during the lapse in appropriations. As you may know, since May 1, CBP has no longer been issuing physical I-94 cards to indicate when an individual entered the U.S. and the length of their approved stay. Instead, that information is being entered electronically and, should someone need to verify that they are legally present in the U.S., they can use the CBP website to print out a copy of their “digital” I-94 card. Because approximately 6,000 CBP positions, primarily held by technicians and support staff, are impacted by the shutdown, the website will not be available. You should also expect delays in updating the system once it comes back on-line.

4. Internal Revenue Service:

It should come as no surprise that the CWA program is considered “non-essential” and, as a result, the program was shut down along with the rest of the government. All processing of applications has stopped and will not resume until the government decides to re-open. At which time, you can expect a delays as the IRS agents attempt to catch up on the backlog. In the interim, engagement fees not covered by a CWA or other applicable withholding exemption, will be subject to 30% withholding.

Obviously, this is an ever changing situation and may have changed already by the time you read this. What has not changed, and is unlikely to change, is that when planning U.S. tours and performances of non-U.S. artists, you should always plan as far in advance as possible and allow as much time as possible. While we will continue to provide updates as they become available, you should also regularly monitor www.artistsfromabroad.org for the latest news.

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For additional information and resources on this and other legal and business issues for the performing arts, visit www.gartslaw.com

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:Brian Taylor, Goldstein, immigration, irs, petitions, processing times, Tour, uscis, visa application, visa petition, visa petitions, visas, work
Posted in Artist Management, Arts Management, Central Withholding Agreements, Law and Disorder: Performing Arts Division, Taxes, Touring, Visas | Comments Closed

Visas for Recording Artists

Wednesday, September 25th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

If a foreign singer (who is not a citizen of a country that is eligible for the visa waiver program) gets a record deal in the USA, what kind of visa would they need to apply for? And if the singer is currently living in a different country with a residency permit, can they apply in that country where he or she is living, or would they need to return to their own country to apply for the visa? Thanks.

Thanks. This is an easy one.

To work in the US, which includes entering the US for the purposes of recording an album (regardless of whether or not the singer is paid), the singer would need to apply for an O-1B visa. An O-1B visa is for individual artists of “extraordinary ability.” To obtain the visa, a US-based petitioner (which could be the record label or an appointed agent) would need to prepare and file a visa petition with United States Citizenship and Immigration Services (USCIS). (Naturally, there are fees and costs to file the petition.)

Once the visa petition is approved, USCIS will issue an “approval notice.” The singer will need that to make an appointment at a US Consulate and schedule a visa interview. He or she will need to complete an on-line application form and pay a visa application fee. However, the singer can go to any US Consulate in the world that is convenient for him or her. He or she does not have to return to their home country or even use the consulate in the country where they are a living. Any consulate in any country with a US flag outside will work. (Just make sure it’s a consulate that issues visas—not all do.) Assuming there are no problems with the background check, and assuming the singer is not from a country the US doesn’t like (which, sadly, is a larger list than you may think), the visa should be issued in 3 or 4 days.

There is a rare exception you should be aware of which may or may not be applicable. An artist is not required to have an artist visa to enter the US for the sole purpose of using a recording studio to record an album that will not be sold or distributed in the US, and provided there will be no public performances or concerts. If this applies, an artist only needs to have a visitor visa (unless they are citizen of a visa waiver country, in which case, they will only need their passport to enter as a visitor for up to 90-days.)

Remember, everything you could possibly want to know about visa and tax issues for foreign artists wishing to perform in the US, including things you didn’t even know you needed to know, can be found on: www.artistsfromabroad.org

__________________________________________________________________

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:approval notice, artistsfromabroad, Brian Taylor, Goldstein, immigration, petitioner, record label, recording, uscis, visa application, visa interview, visa petition, visa waiver program, visas, visitor, visitor visa, waiver
Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

Showcasing: A Rare Visa Exception

Wednesday, August 28th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder

Do non-US artists need artist visas when they come in to perform a showcase at a booking conference? They don’t get paid. Its just to get bookings. In fact, the artists lose money doing this. Can they enter on a tourist visa or do they have to spend even more money and go through the process of getting an artist visa?

Its rare that someone asks us an immigration question where they actually might like the answer…this may be one of those instances.

However, its first always worth remembering that, under current U.S. immigration law, whether or not a foreign artist is required to have an artist visa (almost always either an O or a P) is not related to payment. What triggers the need for an artist visa is performance. Whether or not an artist is paid, whether or not tickets are sold, whether or not the performance is public or private, whether or not the performance is for a non-profit educational or a cultural organization, if an artist performs, and there is someone watching the performance, he or she is required to have an appropriate artist visa.

Except for rare and limited exceptions, an artist can never perform on a visitor visa or, if applicable, under the visa waiver program. One exception is a competition. An artist is not required to have an artist visa if the artist is coming to the U.S. for the sole purpose of participating in a competition where there is no payment other than expenses and a prize, monetary or otherwise. Another exception is an audition. An artist is not required to have an artist visa if the artist is coming to the U.S. for the sole purpose of auditioning or meeting with producers or presenters in the hopes of being hired to perform in the future.

While there is no official codification of a showcase being regarded as an audition, the U.S. State Department in conjunction with U.S. Citizenship and Immigration Services have long taken the position that a showcase is regarded as an audition if it meets the following criteria: The showcase is not open to the public, no tickets are sold or available, attendance is open only to registered members of the booking conference, and the artists are not paid and are responsible for their own expenses. Also, the artist cannot perform any other engagements in the U.S. while on the same trip. In other words, they need to get in, perform the showcase, and get out. If these criteria are met, then an artist may enter the U.S. and perform at the showcase on a visitor visa or, if applicable, a passport issued by a “visa-waiver” country.

Be forewarned: simply calling a performance a “showcase” is not sufficient. Nice try, but that won’t work. If an artist books a venue, sells tickets or otherwise makes tickets available to the public, but allows booking conference attendees to attend free, that is NOT a showcase for purposes of the artist visa exception and the artist will be required to have an appropriate artist visa. Similarly, booking an engagement with a low fee simply because the artist or the artist’s agent/manager believes such engagement will be an opportunity to showcase or introduce the artist’s talents to the U.S. market in the hopes of getting future bookings is also NOT a showcase.

If you believe that you or an artist you represent may qualify for the showcase exception, then, if the artist is traveling on a passport from a “visa waiver” country, he or she needs to travel with a letter from the artist’s agent/manager or, even better, from the booking conference itself, confirming that all the elements of the exception are met. If the artist is traveling on a passport from a “non-visa waiver” country, then he or she will need to apply for a visitor visa at a U.S. consulate, but should bring the appropriate letter with them explaining that the showcase exception applies.

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:audition, bookings, Brian Taylor, engagements, exceptions, Goldstein, immigration, immigration law, state department, travel, visa waiver program, visas, visitor, visitor visa, waiver
Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

Visa Envy: Why Is Yours Longer Than Mine?

Wednesday, July 31st, 2013

By Brian Taylor Goldstein, Esq. I am writing you about a question we have in regards to the length of stay that USCIS grants for O-1B visas. In the past few years, it has been our experience that USCIS will not grant 3 year visas for a time period that has gaps from anywhere to 3 to 6 months between engagements. Therefore, for our artists, we have been applying for month long visas, or three month long visas, etc, which has started to become prohibitively expensive for them, and rather inconvenient and time consuming for us. We were told by an artist that is moving off of our roster that his new manager will be applying for a 3 year visa for him, regardless of the fact that this particular artist has gaps of 6 or more months between engagements, or no engagements at all after a certain point. So our question is, has the USCIS policy changed, or worse, do you think it’s possible that the artist’s new manager has some kind of connection or agreement with USCIS that we do not? Artist visas are not defined by length, but by type: O-1 visas for individual artists, P-1 visas for groups, and P-3 visas for culturally unique individuals or groups. The length of the visa validity period depends on how many engagements and other activities (rehearsals, production meetings, receptions, etc) the artist or group has in the United States—up to 1 year of engagements for P visas and up to 3 years of engagements for O visas. Officially, USCIS will approve a single visa validity period where all the engagements constitute “a continuous event”, such as a tour. However, in its inimitable predilection for unhelpfulness, USCIS has no specific definition of “a continuous event” and no policy on the minimum or maximum length of “gaps” between engagements and activities. Rather, USCIS examiners are given complete, unfettered discretion when it comes to determining whether a gap between engagements is too long and will require filing separate petitions. Let’s say, for example, that an artist has an engagement in October 2013 and their next US engagement is not until April 2013 and the manager files a visa petition requesting a validity period of October 2013 through April 2013. USCIS could either approve the visa for the entire length of the validity period requested, notwithstanding the six month gap between engagements, or it could only approve enough time to cover the October 2013 engagement and require the manager to file a new, separate petition for the April 2013 date. When dealing with this issue, anecdotal evidence and actual experience is your best guide. While I have known USCIS to approve visa petitions even with large gaps between engagements, more often than not it will “cut off” a visa validity period where there are more than 3 – 4 months between engagements or activities. My general advice is to keep gaps as short as possible. As for shortening gaps, or even extending the length of an entire visa validity period, consider this: you are not limited to including in your visa petition only engagements dates that have signed engagement contracts. You do not have to provide a signed contract to support each engagement. Instead, USCIS will accept any written confirmation of an engagement, including unsigned term sheets, deal memos, emails, confirming letters. Even if a date is still under negotiation, so long as you are holding that date on the artist’s calendar, it can be including on the visa petition along with an accompanying written confirmation that the date is being held. In addition, you can also provide a list of the artist’s non-US engagements and explain that when the artist is not performing in the US it is because the artist will be performing elsewhere in the world. I can assure you that USCIS has no special deals with your ex-artist’s new manager. According to your question, your ex-artist is merely claiming that his new manager “will be applying” for a 3 year visa for him. “Will be applying” is not the same that as “has obtained.” If the artist has large gaps in his itinerary or lacks 3 years of engagements, he will be receiving a Request for Evidence (RFE) or a visa denial, not an O-1 with a validity 3 years. Don’t believe everything you are told, especially by disgruntled ex-artists who want you to believe they have moved to greener pastures. __________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal 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. __________________________________________________________________ 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!

Tags:Brian Taylor, continuous event, engagement contract, engagements, gap, gaps, Goldstein, manager, maximum length, petitions, time period, uscis, validity period, visa petition, visa petitions, visa validity, visas
Posted in Agents, Artist Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

New I-94 Process for Artists Touring the United States

Wednesday, May 22nd, 2013

By Brian Taylor Goldstein, Esq. Dear Law and Disorder: I heard that US Immigration will no longer be giving foreign artists the little white card they used to get when an artist entered the US. The cards were stamped with the artist’s visa category and the date they had to leave. It was my understanding that we needed to make copies of those cards if we needed to extend an artist’s visa. Are we supposed to use something else instead? Is there a new process? Yes, you heard correctly. The little white card, called a Form I-94, was an artist’s official arrival/departure record. Up until recently, every foreign artist as well as all other foreign travelers entering the U.S. (except, occasionally, Canadians, depending on when and where they entered) was given a Form I-94 to fill out (most often while waiting in an interminably long line at an airport international arrivals hall), the bottom half of which was stamped with their status and departure date and returned to them by a US Customs and Border Patrol Officer (aka the border troll.) This form was also issued to those who adjusted their status while in the U.S. (ie: changed from F to O), or who extended their visas. The I-94 was used to confirm the artist’s individual’s status or visa category (O, P, F, B1/B2, etc.) and the departure date by which they must leave the U.S. When the artist left, they surrendered the I-94 either to the commercial airline carrier or to CBP directly. The I-94 information and the date of departure was then entered into a database to verify that the artist did not overstay the required departure date. As of April 30, 2013, this process became electronically automated. CBP will no longer require artists to fill out a paper Form I-94 upon arrival to the U.S. by air or sea and will no longer issue paper I-94 forms in return. Instead, CBP will gather the arrival/departure information automatically from the foreign artist’s electronic travel records and, upon entry of the artist into the U.S., will enter their status and departure date electronically. (Because advance information is only transmitted for air and sea travelers, CBP will continue to issue a paper form I-94 “at land border ports of entry”—which is government-speak for Canada and Mexico.) Similarly, when the artist leaves the US, the date of their departure will be electronically gathered, as well. Under the new process, the CBP officer will stamp the passport of each arriving artist. The admission stamp will show the date of admission, class of admission, and the departure date by which the traveler must leave. Artists wanting a hard copy or other evidence of their valid admission and immigration status will need to go to a special website (www.cbp.gov/I94) where, using their passport numbers and names, they can access and print as many physical copies of their I-94 as they want. Officially, there is no legal reason for an artist to have a hard copy of the I-94. Officially, the electronic record and the passport stamp will serve as evidence of their valid admission and immigration status. Nevertheless, we are strongly recommending that all artists, or their managers/agents or employers, go to the website and print out a hard copy of the I-94. Why? Simple—we don’t trust CBP not to make mistakes! Plus, while CBP may no longer require a physical I-94, other government agencies still do. Despite what is stamped in an artist’s passport, an artist’s official arrival/departure record will remain the electronic I-94. If a CBP officer makes an error and the required departure date written on the passport does not correspond with the official departure date electronically entered on the I-94, the I-94 will govern. In other words, regardless of what is written on the passport, the artist MUST leave the US by the date stamped on the I-94 despite what was approved by USCIS or written on their visa. Printing out the I-94 will be the only way to verify that the I-94 reflects the correct visa category and the correct period of admission. Furthermore, having a hard copy of the I-94 will also continue to be required by employers and schools who are required by other government agencies to verify immigration status. A hard copy of the I-94 will also facilitate the process of obtaining drivers licenses and social security numbers. An equally important reason for a paper copy of the I-94 is that it would function as a backup document in the event that CBP officers cannot access the electronic record of admission due to a systems failure at the time that an artist seeks re-admission to the US after a short visit to either Canada or Mexico. A hard copy of the I-94 will also continue to be required by USCIS when an artist is currently in the US and files a visa petition to extend their visa. In such cases, the petition must include a copy of the I-94 to show that the artist was validly admitted and is currently “in-status.” CBP has issued a fact sheet that includes frequently asked questions regarding the impact of automation, visa revalidation, passenger processing times, and more. You can access that at: http://www.cbp.gov CBP contends that this automation will streamline the entry process for travelers, facilitate security, and reduce federal costs by saving the agency an estimated $15.5 million a year. That remains to be seen. As CBP implements the I-94 automation process, processing errors and challenges relating to the automated admissions process and accessibility of electronic records are already arising. _________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal 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. __________________________________________________________________ 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!

Tags:airline carrier, artist, Brian Taylor, canada, cards, customs, departure date, departure record, electronic travel, Goldstein, immigration, ITIN, processing times, Tour, travel, travel records, uscis, visa category, visa petition, visas
Posted in Artist Management, Arts Management, Employees, Law and Disorder: Performing Arts Division, Taxes, Touring, Visas | Comments Closed

Student Visas: A School for Scandal?

Wednesday, May 8th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

May a non-resident alien (Russian) musician here for an advance graduate school degree on an F-1 visa be paid for playing some off-campus recitals? Are they considered “Curricular Practical Training” which is supposed to be allowed, if approved by the Designated School Official? (Of course, 30% of the gross fee would have to be withheld unless a CWA is obtained.) Thanks for your advice!

A lot of schools, universities, and conservatories are all too happy to accept foreign students without really explaining that their ability to “work” in the US during their studies, much less remain long enough after graduation to establish careers in the US, is very limited and restrictive. (Remember, as it applies to artists, the twisted tomes of US immigration law define “work” as any performance in front of an audience regardless of whether or not tickets are sold or the artist is paid.)

While obtaining authorization for a foreign student to perform concerts and recitals on-campus is fairly simple, performing concerts and recitals off-campus can be a bit much trickier. One of the ways foreign students can be granted authorization to perform concerts and recitals off campus is to be approved for Practical Training. Foreign students are eligible for Practical Training once they have been enrolled for at least one academic year (nine months). There are two types of Practical Training: Curricular Practical Training (CPT) and Optional Practical Training (OPT).

CPT includes programs that are an “integral part of an established curriculum.” That is, the off-campus concerts and performances must be associated with the school’s established curriculum and must be an integral part of the student’s degree program. While it is completely within the discretion of the school to determine what qualifies for CPT and what constitutes “an integral part of the student’s degree program,” CPT programs are typically listed in the school’s course catalog with the number of credits included and the name of a responsibility faculty member. CPT programs typically include work/study, internships, or any other type of required internship or practical performance experience which the school believes is necessary for the student’s degree or course of study.

OPT, by contrast, is not tied to the curriculum (though it is supposed to be “related” to the student’s field of study) and can be used for up to a year full time (two years part time) on campus or off campus. OPT can take place either before graduation or in the year following graduation. OPT that takes place before graduation can only be used for up to 20 hours per week during the school year (though full time work is permitted during holidays and vacation periods if the student applies). After graduation, the employment can be full-time. Post-graduation OPT must be completed within 14 months of the student’s graduation. A student can have OPT for a maximum of twelve months after graduation.

A note of caution: while students may take an unlimited amount of Practical Training, if they take more than a year of CPT, they are barred from seeking OPT. This can be critical because the OPT may be a student’s only opportunity to perform professional engagements in the US after graduation. As USCIS discourages students from switching easily from F-1 classification to O-1 classification, any hope of doing so usually rests with what the student is able to do during their year of post-graduation OPT. Total CPT up to 364 days or less will not result in the loss of OPT. However, part time work using CPT for more than a year has been deemed to result in the loss of eligibility for OPT. In short, avoiding the loss of OPT eligibility requires both good record keeping of the time spent performing on CPT as well as a lot of math!

In your case, assuming the Designated School Official (DSO) approves the student’s request to perform the off-campus recitals, the DSO will enter the information in SEVIS and print out an I-20 with the CPT authorization for the student. The DSO is required to sign and date the I-20 prior to returning it to the student. While no employment authorization document from USCIS is needed for curricular practical training, the student may not begin work using CPT until getting the endorsed I-20.

So long as a student is approved for either CPT or OPT, then, yes, the student can be paid. However, while your willingness to acknowledge US tax-withholding obligations is both rare and commendable, it may be premature. First, Russians belong to a small list of countries from whom no withholding is required because all money earned by Russians nationals in the US is tax exempt. However, this changes if the Russian is considered a “resident alien” for tax purposes. Second, just because a student (or anyone, for that matter) is a “non-resident” for immigration purposes, doesn’t mean they are a “non-resident” for tax purposes. It all depends on how much time they spend in the US each year. As with all foreign artist tax matters, it’s a very fact specific analysis. Assuming your student in approved for CPT, then I would strongly recommend you consult with an expert in foreign artist taxation to determine the student’s specific withholding and tax obligations.

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:academic year, Brian Taylor, campus concerts, campus recitals, conservatories, curricular practical training, cwa, degree program, Goldstein, graduate school degree, immigration law, music, optional practical training, part time, recitals, Russia, russian musician, student visa, students, tax obligations, uscis, visas
Posted in Agents, Artist Management, Employees, Law and Disorder: Performing Arts Division, Taxes, Touring, Visas | Comments Closed

A Visa Substitution Requires an Artist to Substitute

Wednesday, April 17th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

I have a substitution/visa question for you….We were intending to use someone from the US as the eighth singer for one of our groups coming to perform with a symphony in July 2013. It’s now looking like the group might have to replace the intended US singer with a singer from the UK. The rest of the group have visas that have already been approved and issues. Obviously, the singer from the US was not included in the original visa application, so I’m wondering how it would work if we’re now substituting a singer from the UK for the US singer. Would we have to do an entirely new visa application for the new (UK) singer, or would we still be able to add this new singer to the existing (approved) visa petition as a replacement for the US singer? Any light you could shed on this, either by answering these questions or by referring me to another resource where I might be able to get an answer to these questions would be extremely helpful and very much appreciated. Thanks so much!

I can both shed light and refer you to another resource.

First, the light: If you filed a petition listing 7 beneficiaries and 7 beneficiaries are listed on the visa approval notice, and all 7 will be coming to the US, then there is no one you can substitute. The substitution process is available only if one of the original 7 listed singers were to become ill or otherwise unable to travel to the US. Then, you could ask the consulate to “substitute” one of the 7 singers with a new singer. Its also much hard to substitute a visa that has already been issued as the original artists would need to return his/her passport and visa to the consulate in order for it to be voided before the new visa could be issued.

If you need to add an 8th singer and that 8^th singer is a non-US performer, then you will have to file an amended petition where you ask for 8 beneficiaries instead of 7. You cannot file a petition just for the extra singer as you cannot list only 1 person on a P (group) visa petition. You would have to re-file the whole original petition as an “Amended Petition” where you list 8 singers rather than 7 and get a new approval notice for everyone. However, only the new, 8^th singer, would need to go the consulate. The other 7 can use the visas already issued. You would also need to provide all of the same supporting materials you provided with the original petition (reviews, contracts, articles, etc.) once again as USCIS does not keep copies of these things. (Well, they do, but they are not easily retrievable as we suspect the files are sent somewhere near a top secret UFO landing site in Nevada.)

As the concert is not until July 2013, you won’t need to pay for premium processing and, if you file it as an amended petition, then you won’t need a new union letter. You’ll just need to pay the $325 filing fee.

Now for the resource: There is a lot of information on the substitution process at www.artistsfromabroad.org. You can also link to that site, as well as fine other resources on immigration, at our own website: www.ggartslaw.com

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:approval notice, artistsfromabroad, Brian Taylor, Goldstein, singers, travel, uscis, visa application, visa approval, visa petition, visas, work
Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

Multiple-Entry Visas: A Safe Bet

Wednesday, February 27th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

I am working on an orchestra tour for the 13-14 Season. We would like to include Canadian dates in the route, but they are neither possible at the beginning or end of the tour. Is it possible on a work visa, for a group to depart the USA for Canada for a couple of engagements and then re-enter the US as part of a single visa application? This was not possible for the Cubans, I was told. However, I know a Russian ballet company that was able to do this. My associate is confident this is not possible.

I hope you made a bet with your associate, because you’d win. Your associate is incorrect. Except for a specific list of countries, ALL visas are multiple-entry during the validity period. So, for example, if a UK citizen receives an O-1 for 1 year, he can enter, leave, and re-enter as often as he wants during that year. If a Russian orchestra receives a P-1 for 6 months, they can enter, leave, and re-enter as often as they want during that 6 months. Exceptions include such countries as China, Brazil, Cuba, and certain middle-eastern countries. You can find the complete list of countries that have restricted entries on the state department website at http://travel.state.gov/visa/fees/fees_3272.html

So long as a member of your orchestra is not from a country on the restricted entry list, then, provided you are able to obtain a P-1 visa for the orchestra for the 13-14 season, each member will be able to enter the US, leave and go to Canada, and re-enter the US whenever and as often as they wish. However, as they may need separate visas to enter Canada, you will need to check Canadian law immigration to confirm that.

___________________________________________________________________

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:Brian Taylor, engagements, entry visas, Goldstein, list of countries, orchestra, state department, Tour, travel, validity period, visa application, work visa
Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

Musical America Blogs

Archive for the ‘Visas’ Category

A Secret About Passports

Oh, Canada!

Does The Government Shut Down Also Shut Our Doors?

Visas for Recording Artists

Showcasing: A Rare Visa Exception

Visa Envy: Why Is Yours Longer Than Mine?

New I-94 Process for Artists Touring the United States

Student Visas: A School for Scandal?

A Visa Substitution Requires an Artist to Substitute

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