Archive for the ‘Touring’ Category

« Older Entries

IN-PERSON APPOINTMENT WAIVERS NOW AVAILABLE FOR O AND P VISAS

Tuesday, January 4th, 2022

By Brian Taylor Goldstein

Happy New Year! Let’s hope the 2021 we wanted finally comes in 2022,

Perhaps you were as surprised as I to wake up Christmas morning to discover that the U.S. Department of State had left an actual gift in our stockings. Not too much, and not too expensive, but it’s the thought that counts.

In order to address the ongoing delays and backlogs in obtaining visa application appointments at U.S. Consulates, the Department of State announced on December 23, 2021 that it was expanding its policy of permitting U.S. Consulates to waive in-person appointments/interviews for visa applications and allowing applicants to apply for visas merely by mailing in the passport and with no in-person appointment/interview required. A such, effective immediately:

  • Anyone needing to apply for an O or P visa who has ever been issued a U.S. visa in any visa category (B, F, O, P, J, etc) at any time in the past is now eligible for an in-person appointment/interview waiver.

 

  • Anyone needing to apply for an O or P visa who has never been approved for a U.S. visa before is also now eligible for an in-person appointment/interview waiver provided:

(1) They are a citizen of a country that participates in the US. Visa Waiver Programme (VWP); and

(2) They have previously traveled to the U.S. at least once before under ESTA (Electronic System for Travel Authorization).

  • Anyone needing to apply for an O or P visa who has previously been issued an O or P visa within the last 48 months of the prior visa’s expiration date is also eligible for an in-person appointment/interview waiver.

There are two important additional requirements:

(1) The visa applicant’s O or P petition must be approved by USCIS by the time they submit their passport to the consulate; and

(2) The visa application must be submitted at the U.S. Consulate located in the country of which they are a citizen or permanent resident. It is still possible to apply for a visa any ANY U.S. Consulate in the world. However, you will not be eligible for an in-person appointment/interview waiver unless you apply at the U.S. Consulate located in the country where you are a citizen or permanent resident.

As always, U.S. Consulates set their own procedures and policies with regard to how they implement directives from the Department of State. So, the process for requesting an in-person appointment/interview waiver will vary from consulate to consulate, even with regard to consulates within the same country. However, in general, to apply for a visa and request an in-person appointment/interview waiver, the applicant should:

(1) Go to the website of the U.S. Consulate located in the country of which they are a citizen or permanent resident to check for updates and specific policies.

(2) Complete a DS-160 and pay the application fee.

(3) Follow the instructions for requesting an in-person appointment/interview waiver.

Whether or not an in-person appointment/interview waiver will be granted will continue to remain at the discretion of the U.S. Consulate. In general, any applicant who has ever been refused a visa in the past will not qualify, unless that refusal was overcome or waived, and there can be no apparent or potential ineligibilities. Also, due to ongoing staff shortages U.S. Consulates around the world as a result of COVID and the insidiously prolific variations of its mephistophelian offspring, some U.S. Consulates may limit the visa categories eligible for in-person appointment/ interview waivers as well as limit the number of total waivers they are able to process in all categories any given time

For those interested in reading the actual U.S. State Department announcement, click here on the helpful government information specialist:

GG Arts Law provides a comprehensive range of legal services and strategic support for the performing arts, including: Artist Visas, Taxes, and Touring; Rights & Licensing; Negotiations & Representation; Contracts; Business & Non-Profit Organization & Management; Project Management; and Strategic Consulting & Planning.

VISIT OUR NEW WEBSITE: ggartslaw.com‘

 

THE OFFICIAL LEGALESE:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty or threatening email to someone, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about.

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

CLOUDY WITH CONTINUED EXCEPTIONS

Sunday, July 11th, 2021

Every time I sit down to write a blog about a more compelling subject, such as tales of successful artist entrepreneurship or navigating exciting new commissions and projects, a visa crisis drags me back into the bowels of despair. On this occasion, it’s the ongoing impact of the U.S. COVID Travel Ban on international artists coming to the U.S. compounded by the significant backlogs and delays at most U.S. consulates.

For those of you who don’t know what I am talking about, you either don’t work with non-U.S. artists or you have been blissfully unconscious for the past 15 months. Whichever the case may be: “Where ignorance is bliss, tis folly to be wise.” (Thomas Gray). For everyone else, here’s a quick recap:

Under the U.S. COVID Travel Ban, anyone traveling to the U.S. from the European Schengen Area (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Monaco, San Marino, and Vatican City), the United Kingdom, Ireland, Brazil, South Africa, or India cannot enter the U.S. without EITHER traveling to a country not on the list and quarantining there for 14 days before entering the U.S. OR qualifying for an exception to the ban. There are various exceptions for immediate family members of U.S. Citizens spouses, medical professionals, and people coming to help fix roads and bridges, but no automatic exceptions for artists. For artists to get a waiver from the ban, they must qualify for the “catch-all” exception of showing that it is in the “national interest” for them to be granted an exemption from the ban. This is called a “National Interest Exception” or NIE…or, more aptly: “Naturally It’s Execrable.”

To make matters worse, for artists who have been approved for O or P visas, but need to apply for them at a U.S. Consulate, as a result of COVID lockdowns and closures over the last 15 months most U.S. consulates—particularly in Europe and the U.K. (which isn’t really part of Europe anymore ever since it unmoored itself and drifted off in the Ocean of Belegaer towards the Undying Lands) are either not accepting visa application appointments or have none available until February 2022 or later.

For more info, stop and first read our May 20, 2021 blog entitled “Is It Time For Artists To Return To The US?” which you can find either here on Musical America  or on our website www.ggartslaw.com, then come back and read on.

As the COVID Travel Ban is negatively impacting almost all sectors of the U.S. economy—from hospitality and tourism to manufacturing and global trade—on Thursday, July 8, the American Immigration Lawyers Association hosted a nationwide zoom call to discuss the crisis and the latest developments, as well as potential strategies and solutions. The call included liaisons with both the U.S. Department of State (DOS) and U.S. Customs and Border Patrol (CBP). (What, you say? What about USCIS? For once, the scourge of USCIS is not responsible for our current tortures.) Not surprisingly, I was among the few on the call who worked with artists, but I was able to learn a significant amount of relevant information to us nonetheless.

So, pour a drink and brace yourselves….

The COVID Ban is not likely to be lifted any time soon.

Whilst there is broad-based pressure and lobbying taking place from all sectors and multiple industries to have the ban either lifted or amended, the White House at the moment is NOT being responsive to lifting the Presidential Order that implements the ban. Apparently, as the U.S. economy begins to return to pre-COVID levels and most parts of the country have seen COVID cases drop, they have no interest in risking those achievements—especially as new COVID variants continue to emerge. Additionally, there are large swathes of the U.S. still living in 1865 and whose denizens cower from the threat of reptilian aliens disguised as Italian waiters bearing vaccines laced with an implant designed by the Chinese to turn everyone in to gay socialists when activated by a space satellite owned by Iceland. At the moment, they are relying completely on the U.S. Centers for Disease Control and Prevention (CDC) to set COVID policy with regard to international travel. In the meantime, there are various lawsuits challenging the legality of the ban, but it will take a while for those to work through.

As opposed to becoming more streamlined (as we all had hoped), the process for obtaining an NIE is taking longer and has become more complex.

Though U.S. Consulates are titularly controlled by DOS, each U.S. consulate operates as an autonomous fiefdom in setting its own NIE policies, procedures, and requirements. As a result, inconsistencies are rampant and the situation is going to continue to be unpredictable, fraught with uncertainty, and with no clear paths or directives forthcoming.

For now, it continues to be the case that artists can only apply for an NIE at a U.S. Consulate in a country where they are either a citizen or permanent resident. However, whereas some consulates require the NIE request to be submitted via email with the ability to attach evidence and supporting materials, others will only allow you to request the NIE through the consulate’s website and give you a limit of 500 characters or less within which to do so.

For artists who need both an NIE and to apply for their visas, some consulates will first require you to schedule an appointment—even if it is not until 2022—and then submit the NIE request. Others will not even allow you to schedule an appointment without first being approved for an NIE. Still others may grant an emergency appointment, but then deny the NIE request at the time of the interview. Or, in an experience I had, approve the NIE request, schedule an interview, tell the artist at the interview that everything “looked fine,” and then took so long to issue the visa and return the passport that the artist missed the concert anyway!

It has also become the case that there are simply too many NIE requests being filed in too many circumstances on behalf of anyone and everyone who has a need to enter the U.S., regardless of whether or not they qualify for an NIE. This includes situations where the need for an artist to enter the U.S. is less in the “national interest” than in the “personal interest” of an artistic director who simply doesn’t want to book a different artist because he wants who he wants or in the personal interest of a performer who really needs the engagement fee (ie: which would be all of them right now.)

The U.S. consulate in London, for instance, claims they are getting as many NIE requests in 1 month than they would normally get visa applications. I can attest that whereas only a few months ago London would respond to my NIE request within 48 hours, it is now taking over 60 days. Some consulates, such as Paris, take even longer or never respond at all unless the NIE request has been approved. In addition, as there is no specific definition of “national interest”, all NIE requests for artists must now be submitted from a U.S. Consulate for DOS to make the determination and then inform the consulate which must, in turn, inform the applicant.

So, let’s quickly review what it takes for an artist to qualify for an NIE waiver:

Whilst the term “national interest” is undefined, it most certainly does NOT mean “cultural interest” or “talent” or that “the artist is very big deal.” It must truly be a situation where (i) a specific artist cannot be substituted with anyone in the U.S.; (ii) the entire event will be cancelled without that artist and cannot be rescheduled; and (iii) the cancellation will cause significant economic harm to a U.S. organization to a level that will make angels weep…or, at least, a consulate officer.

In the case of festivals, you must be able to show that the entire event will be cancelled without the artist and not just a single concert that is part of a larger event.

In the case of artistic directors or non-performers, you will need to address why their physical presence is mandatory and why they can’t simply have planning meetings by zoom…and needing to meet with donors face-to-face doesn’t count. The elderly can zoom as well if their grandkids show them how.

In the case of groups or ensembles, you will need to submit an NIE request on behalf of each individual artist and show that each and every member is required, cannot be substituted with anyone else, and losing even one member would cause the entire performance to be cancelled. Regardless, if you apply for 10, expect only 5 to be approved.

Also, if an artist was already in the U.S., left, and now needs to re-enter, they must have had a very good reason for why they left in the first place. As one consular officer explained: “now is not the time for vacations.”

However, there are a few smudges of positive news…

In a further effort to reduce caseloads, DOS announced just last week that if an NIE is approved it will be approved for 12 months and permit multiple entries to cover multiple engagements during that time. This is good news for artist and conductors who, assuming they are approved for an NIE, will no longer need to request an NIE each time they want to enter the U.S. Also, for those artists who have already received NIE approvals, this new policy will apply retroactively to them. [cite]

London and several other consulates (you’ll have to research which ones) have now lifted their prior requirement that an NIE request can only be submitted within 30 days prior to travel and will now permit an NIE request to be submitted up to 60 days in advance of travel.

Also, most U.S. consulates are no longer requiring that airline tickets be booked in advance prior to submitting an NIE request.

On the other hand, as for the significant backlogs and the inability of many U.S. Consulates to schedule visa appointments until 2022 (if at all), that situation is not likely to improve any time soon either.

First, as a result of COVID lockdowns and closures, most U.S. Consulates have a backlog of tens of thousands of applicants for everything from green cards to student visas to employment visas and who have been waiting for appointments for over 15 months. Second, President Mar-a-Lardo successfully gutted the budget of the DOS and over 400 officers were laid off. DOS has made requests for appropriations and more staff for consulates, but that would require Congress’s approval, half of which are, instead, focused on forming militias to fight the aforementioned vaccine threat and are ill-inclined to assist aliens—by them reptilian or European.

For the immediate future, DOS has given U.S. consulates unfettered discretion in determining how to prioritize their workloads with regard to scheduling visa appointments and granting emergency or expedite appointments. For the most part, U.S. consulates will prioritize applications for green cards, family unification, humanitarian cases, and those who have been waiting longer. Applications for new employment-based visas—such as O and P visas—will come last. In fact, many consulates claim that they can either process visa applications or NIE requests, but not both at the same time.

In a pathetically miniscule gesture of addressing the issue, DOS has expanded the ability of consulates to waive the in-person interview for individuals applying for a visa in the same classification they have held before. Previously, only those whose prior visa expired within 24 months were eligible for an interview waiver. This has now been expended to 48 months. So, for example, if an artist had an O-1 visa in 2019 and has now been approved for a new O-1 for 2022, she may be eligible to request a visa interview waiver and just mail in her passport without being required even to go to the consulate. But, of course, “eligible” does not mean “entitled” and waivers remain discretionary and inconsistent, so never assume.

For artists who may not easily qualify for an NIE, how does a Caribbean vacation sound?

If an artist holds a valid O or P visa covering the time they need to be in the U.S., then it is far easier just to travel to a third country not on the banned list, wait there for 14 days, and then enter the U.S. There has been far more success with this approach, than with obtaining an NIE. In fact, several artists I work with have successfully travelled from Europe to the Caribbean prior to entering the U.S. However, each country has its own COVID regulations as to who can enter, so those will need to be researched in advance to travel.

If an artist has an approved O or P petition, but needs to apply for a visa and cannot get an appointment at a U.S. consulate and/or does not qualify for an NIE, the artist can try and apply at a U.S. consulate in a third country that is not on the banned list. However, not all U.S. Consulates will accept visa applications from non-citizens of the country in which the consulate is located.

For example, The Bahamas are happy to let you enter and enjoy their turquoise shark-infested waters for 14 days, but the U.S. Consulate will not let you apply for a visa there unless you are a Bahamian citizen. On the other hand, Barbados will allow you to relax in the sunshine of their smiling island (look at in on a map!) and the U.S. Consulate will also allow you to apply for a visa. Similarly, Mexico will allow you to enter and enjoy an unlimited margarita bar for 14 days and you can then fly into the U.S. (the land border is closed.) However, non-Mexican citizens cannot apply for visas at the U.S. Consulate unless it is a significant emergency. On the other hand, Canada’s poutine palaces are closed to you if your only reason to be in Canada is to enter the U.S. after 14 days or if you are entering solely to apply for a U.S. visa.

Remember airports?

A few of you lovely readers may recall that for a brief period of time in 2020, NIE requests could be submitted in advance to a CBP office at certain airports where an artist planned to arrive in the U.S. Then, in early 2021, that policy was changed and all NIE requests had to be submitted to a consulate. Now, CBP is back—but with restrictions.

You can once again submit an NIE request to a CBP office a major airport, but ONLY if the NIE request was first submitted to a consulate and the consulate never responded or denied the NIE. However, CBP and DOS are two separate agencies and do not confer with one another on policies and procedures. So how long you need to wait for a consulate to respond before being able to send an NIE request to CBP varies from airport to airport…and each one has a different process. So, like with NIE requests at consulates, you will need to research those on a case-by-case basis as well.

So, where do we go from here?

If you are a non-US artist currently in the U.S. in O or P classification and you need to travel to a country subject to the COVID Travel Ban—don’t! I have had many artists not listen to me on this and get stuck.

If an artist must travel or is traveling from a country subject to the COVID Travel Ban, it is strongly recommended that they plan to travel to a third country for 14 days before trying to enter the U.S. The expense and time notwithstanding, it’s easier and, so far, has been more dependable than obtaining an NIE. However, never travel to a third country without first research that own country’s COVID requirements and, if applicable, whether you can, in fact, get an appointment at the U.S. Consulate there.

If you plan to seek an NIE and/or need to apply for a visa on behalf of an artist, you must do research and have a plan. As always, whilst anecdotal evidence can be a great way to start, all cases are different and experience is subject to change.

When applying for an NIE, make sure the artist actually qualifies. Please be genuinely self-reflective and do not submit an NIE for every artist or ensemble just because you want to “give it a shot.” You are only making it worse for everyone else by bogging down the process. Regardless, if you do apply, rarely will you be able simply to simply submit a letter from a manager explaining how important the performance or the artist is. For consulates which permit you to submit evidence, submit actual evidence, including letters from the venues and presenters.

At this stage, do NOT plan for most if any, non-U.S. artists to be able to enter the U.S. to perform in late summer or early fall. Or, at least, have contingency plans.

As we experience COVID variants such as delta, delta plus, and delta business with a free booster shot, continue to expect delay and postponements, possibly into 2022.

As, for the moment, USCIS is processing petitions fairly rapidly—in 6 – 8 weeks for standard processing—get petitions in early and get that over with.

Research, plan, and plan some more. Do not, as one presenter bewailed to me after an artist was refused entry, say: “I just never thought this would be a problem.”

Perhaps it was a bit presumptuous to believe that emerging from the darkness of the last 15 months would involve a light immediately being switched on with regard to international artist travel and proceeding with planned international engagements and performances. Rather, this is going to be more like a slow sunrise with intermittent bursts of COVID surges and clouds of government incompetence.

Perhaps most importantly, the time you waste writing yet another letter to yet another politician complaining about how broken the U.S. immigration system is (and it is!), explaining why it puts artists and the arts in a distinct disadvantage (and it does!), and arguing why international artists are critical to the cultural, intellectual, educational, and economic interests of the U.S. (and they are!) could be far better spent on planning, researching and strategizing—on this, as well as many other issues that I shall leave for another day. Our industry has never been an easy one and there is no rest for the weary, but we have martinis, medication, therapy, and working with wonderful colleagues to get us through.

GG Arts Law provides a comprehensive range of legal services and strategic support for the performing arts, including: Artist Visas, Taxes, and Touring; Rights & Licensing; Negotiations & Representation; Contracts; Business & Non-Profit Organization & Management; Project Management; and Strategic Consulting & Planning.

VISIT OUR NEW WEBSITE: ggartslaw.com

___________________________________________________________

THE OFFICIAL LEGALESE:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty or threatening email to someone, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about.

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

IS IT TIME FOR ARTISTS TO RETURN TO THE U.S.?

Thursday, May 20th, 2021

The COVID Travel Ban, Significant Consulate Backlogs, and Other Current Issues For Non-U.S. Artists

By Brian Taylor GoldsteinSorry for the long delay since my last post, but, well…it’s been an interesting year, to say the least. Things are improving, but 2021 still needs more rehearsal time to work the kinks out. Here in New York City, some signs of normalcy are beginning to return. People are feeling safe enough to pee in the subway without their masks, the costumed characters in Times Square are again groping without hand sanitizer, and the rats are no longer practising social distancing when they spy a dropped pizza crust.  As signs of life begin emerging in the world of the performing arts as well, artists and presenters are once again thinking internationally, including bringing artists and ensembles to the U.S. as soon as this summer. Which means, of course, we need to check in on the landscape of artist visas.

WARNING: This could all have changed by the time you read this, so read quickly!

Things have actually already shown signs of improving since Lord Voldemoron was defeated. Among them, USCIS processing times for visa petitions have shortened to approximately 1 to 3 months and a number of the King Babycoward’s more draconian policies have been reversed. However, a number of challenges still remain, not least among them is that the COVID travel ban remains in place. As a reminder, this means that anyone traveling to the U.S. from the European Schengen Area (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Monaco, San Marino, and Vatican City),  United Kingdom, Ireland, Brazil, South Africa, or India cannot enter the U.S. without EITHER traveling to a country not on the list and quarantining there for 14 days before entering the U.S. OR qualifying for an exception to the ban.

There are various exceptions for immediate family members of U.S. Citizens spouses, medical professionals, and people coming to help fix roads and bridges. However, there are no automatic exceptions for artists. For artists to get a waiver from the ban and enter the U.S. without first having to quarantine in a non-banned country, they must qualify for the “catch-all” exception of showing that it is in the “national interest” for them to be allowed to do so.

Getting a National Interest Exception for an Artist

It is not meant to be easy to get an artist approved for a National Interest Exception (“NIE”). It’s called a “exception” for a reason. However, as with everything the U.S. touches in the realm of immigration, it’s quagmire of inconsistencies.

Requests for NIE’s are submitted to the U.S. Consulate in the country where the artist is either a citizen or a permanent resident. Every consulate has its own policies and procedures for how you submit the request and how they determine whether an artist does or does not qualify for an NIE. There are no standard rules or procedures. In fact, at the moment, a few U.S. Consulates, including Vienna, have incorrectly taken the position that artists are not eligible for NIEs at all! Others just make up the rules by cutting the head off a chicken and seeing where it flops down on a giant procedural bingo card. This is frustrating…nay, maddening. However, this has always been the case. Historically, regardless of who is in charge or who controls Congress, there has never been any consistency, predictability, or reliability in the entire process of obtaining artist visas. It ebbs and flows. Nothing new to see here.

Based on the NIE requests we have had approved, the consulates we have been dealing appear to require the following:

(a) a major or significant artist;

(b) entering the U.S. to do something important for a major or significant U.S. venue or presenter; which

(c) cannot be done without the artist; and which

(d) would cause dire economic or institutional consequences if the concert or event were to be cancelled.

In short, the ideal candidate for an NIE would be a music director, stage director, soloist, or major artist entering the U.S. for a specific high-profile performance for a specific high-profile venue that is either part of the venue’s or organization’s much heralded return to live performances or which will be raising significant funds for the venue or organization after a year of being closed. In other words, the artist’s presence in the U.S. must be critical to the economic survival of the venue or presenter or the venue or presenter’s community. This means, for example, that a musician entering to perform as a member of an orchestra (as opposed to a soloist) or to perform at a festival with multiple concerts and events (unless the artist is a headliner) is highly unlikely to be approved for an NIE…regardless of who you know, what contacts you have, or how badly the artistic director stamps their feet.

If you plan to submit an NIE request, here are a few important things to keep in mind:

  • In addition to providing a copy of the artist’s passport and O or P visa, you will need to provide (1) a letter from the venue or presenter (NOT THE MANAGER OR AGENT) explaining why the artist is so significant to whatever it is they need them to do that the organization’s future will be imperilled if the event or performance is cancelled and (2) A letter from the artist (AGAIN, NOT THE MANAGER OR AGENT) explaining why the artist cannot travel to a country not on the banned list and quarantine there prior to entering the U.S. (Most often, it will be either because the artist has other professional commitments in the country or that other travel bans prevent them from easily being able to go to other countries.) I also include background information on the artist as well as the venue or organization.
  • A request can only be submitted to the U.S. Consulate in the country where the artist is either a citizen or permanent resident.
  • The artist must be physically present in the country at the time the request is submitted.
  • Once the request is submitted, the artist cannot leave the country and, if the NIE is approved, must fly direct from that country to the U.S. (Connecting flights in the U.S. are fine, but the artist cannot connect through another country on the COVID ban list.)
  • A request cannot be submitted earlier than 30 days prior to the date the artist needs to enter the U.S.
  • At the time the request is made, the artist must have confirmed airline tickets.

Once an NIE request has been submitted, some consulates will get back to you within 48 – 72 hours, others will take a few weeks, and others may not respond at all. Recently, London has been getting back to me within 24 hours—but, as you will see below, will find other ways to thwart your plans.

What If An Artist Has Been Approved For An O or P Visa, But Has Not Yet Received the Visa?

 

At the moment, most if not all consulates are either closed or are not accepting routine visa applications. In London, for example, there are currently no visa appointments available until October 2021. If an artist does not already hold an O or P visa, then at the same time they submit an NIE Request they will also need to request an emergency appointment. If the NIE is approved, then the artist will be given an emergency appointment date to come to the consulate and apply for their visa. If not, then the artist will need to wait until the consulates re-open. (I have some artists who have been approved for O or P visas, but have been waiting over a year to be able to apply for them.)

LONDON CONSULATE WARNING: I recently had an NIE approved by the U.S. Consulate in London for a UK Violinist who had been approved for an O-1B visa, but need to apply for the actual visa stamp. He was given an emergency appointment, went in, was told everything was in order, and that his visa would be issued asap…and after 3 weeks still had not received his visa. So, he had to cancel his U.S. date regardless of having obtained an NIE. (And, yes, we tried all of the available back channels—all of which proved to be backed up.)

Can Orchestras and Ensembles Get NIEs?

Anything is possible, but this is highly improbable for a number of reasons. First, NIE requests are submitted and approved on an individual basis. You cannot submit an NIE request for an entire group. A request would need be submitted on behalf of each musician and each person would need to qualify separately–which would not only prove unwieldy, but runs the risk of not everyone getting approved. Second, as you can’t apply for an NIE more than 30 days in advance of the travel date and you must have booked flights at the time you submit the request, you would have to incur the costs of air travel for an entire orchestra before even knowing if you can travel. And, third, there is the issue of getting emergency appointments for everyone when it’s hard enough to get an appointment for a single individual.

When Will The Ban Be Lifted?

Excellent question. I have no idea. Seriously. No idea. Nada. Nix. Please stop asking me. My expectation, based on nothing more than my intuition and speculation, neither of which have ever proven that reliable, is that rather than lifting the ban entirely, a new exception will be created for people who are vaccinated. But, seriously. I don’t know. There are a lot of rumours. I’ve heard them too, but please don’t rely on any of them. When these things are announced, we will all learn at the same time. Maybe by the end of May. Or not.

The only good news, such as it is, is that, unlike in the days of Uncle Scam in which the COVID ban was used purely as a tool to frustrate immigration, the current status of ban is based solely on COVID with no ulterior motives. Also, as the ban is causing significant economic harm to many different sectors of the U.S. economy, there is significant pressure to get it lifted or amended as soon as possible. In other words, we are not alone and a lot of pressure is being put on the Biden administration to lift the ban immediately.

What Will Happen When The Ban Is Lifted?

Once the COVID ban is lifted (or additional exceptions are created for those who are vaccinated), then the consulates will eventually fully re-open. However, the U.S. State Department has already issued warnings to expect delays as they work through a backlog of over a year of cancelled appointments. Those who had their appointments cancelled in 2020 will be given priority. I suspect this will make emergency appointments harder to qualify for, but this is all quite fluid. Again, no one knows. With luck, the expectation is that consulates will be allocated new staff as well as additional funding to expedite the backlog. Again, as there are many industries being impacted beyond the performing arts, all with more money and political influence, there is significant pressure to facilitate international travel as quickly as possible. Everything from tourism to trade depends upon it. Nonetheless, the artists, venues, and presenters we are working with are all being advised to have contingency plans and flexible expectations at least through the rest of 2021.

What about USCIS? What Are They Up To?

While we are joyously seeing fewer RFEs, officers loyal to the ploys and prejudices of the Tangerine Anus remain. As a result, we are still seeing a few spiteful RFEs asking that artists who remained in the U.S. during 2020 produce paystubs to prove they were not on unemployment and were not in violation of their O or P status. But maniacal spitefulness, a deranged sense of paranoia, and the intellectual capacity of a peeled grape have always been among the qualities USCIS seeks when hiring officers, so, again, nothing new to see here.

In summary, things are improving. The performing arts are coming back the way we all know they would. The industry might look different, but a beach always looks different after a hurricane sweeps through. Eventually, the sun comes out and we all go back in the water. We just may need to wait a bit longer for the waves and rip-tides to subside.

__________________________________________________________

GG Arts Law provides a comprehensive range of legal services and strategic support for the performing arts, including: Artist Visas, Taxes, and Touring; Rights & Licensing; Negotiations & Representation; Contracts; Business & Non-Profit Organization & Management; Project Management; and Strategic Consulting & Planning.

VISIT OUR NEW WEBSITE: ggartslaw.com

___________________________________________________________

THE OFFICIAL LEGALESE:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty or threatening email to someone, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about.

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

What We Know So Far About Trump’s Coronavirus Travel Ban

Friday, March 13th, 2020

By Brian Taylor Goldstein

In short, not much. As you can imagine, this was announced without any details as to how, exactly, this was going to work in terms of screening, implementation, flight schedules, etc. But here what we know so far…

  • Anyone who has been in one of the 26 European countries in the Schengen zone within 14 days prior to Friday, March 13, 2020, they will not be allowed to board the plane and/or enter the U.S. for the next 30 days.
  • The 26 European countries in the Schengen zone — Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and Switzerland.
  • The ban does NOT apply to the U.K. or Ireland, as well as Croatia, Cyprus, Ireland, Turkey and Ukraine. (No one knows why, though it just so happens that both the U.K. and Ireland both host Trump golf resorts…hmmm.) However, while the citizens and residents of these countries are exempted from the travel ban, if they have visited any of the European countries on Trump’s list over the past 14 days, then they are subject to the FULL 30 day ban.
  • The ban does NOT apply to permanent residents (green card holders), U.S. citizens, and the spouses, parents or siblings of American citizens or permanent residents, as well as members of the U.S. military and their spouses and children. However, they will be restricted to flying to specific U.S. airports for screening.

In addition, we have just learned today that:

  • The U.S. embassy in Oslo and Lisbon has temporarily ceased all visa operations until further notice due to the outbreak of Novel Coronavirus Disease COVID-19. It’s highly likely that more embassies and consulates will follow suit.
  • Denmark just announced it was closing its borders.

We will keep you informed as soon as we know of any changes, on our social media pages (so we don’t bombard you with emails). If you would like to stay updated follow our social media links at the bottom of the page.

Lastly, Trump has asked that everyone remember that he warned us this would happen if we kept letting foreigners into the U.S. and now we should be ashamed of what we have done to his perfect economy.

_____________________________________________________

For additional information and resources on this and other legal, project management, and business issues for the performing arts, as well as to sign up for our newsletters and follow us on social media visit ggartslaw.com

________________________________________________________

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

Tags:, , , , ,
Posted in Acts of God, Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Uncategorized, Visas | Comments Closed

U.S. Artist Visa Updates as of April 5, 2019

Friday, April 5th, 2019

By Brian Taylor Goldstein

Most of you are aware by now that in fall 2018 a number of significant policy and procedural changes were imposed on the already exasperating process of obtaining U.S. artist visas. No surprisingly, these changes were the work of Donald Trump, who is also known by many other names: Cheeto-In-Chief, Trumpty Dumpty, Captain Chaos, Screaming Carrot Demon, Trumplethinskin, Darth Hater, The Tangerine Tornado, Agent Orange, Putin’s Papaya, Genghis Can’t, The Angry Creamsicle, Bumbledore, The Trumpet of Doom, The Tiny Tentacled Twitter Twat, Prima Donald, The White Pride Piper, and, my personal favourite, Baron Mango Von Wankerdoodle.

Over the last six months we have now had a chance to see how these new policies are actually being implemented and imposed. (For a more extensive analysis of the changes themselves, please re-read our earlier blog posts from September 2018 and November 2018 or visit our website www.ggartgslaw.com)

I. TROUBLES FOR STUDENT O-1 PETITIONS

The rise in Requests for Evidence (RFEs) and visa denials for young artists seeking their first O-1 visa has grown considerably. This has become particularly true for artists who are already in the U.S. on student visas and, after graduation, seek an O-1 visa to remain in the U.S.

Students who have entered the U.S. to pursue a course of study and who have only pursued their academic path without having also performed outside of the U.S. or also performed in non-academic concerts, recitals, and venues appear to be in the most peril.

Remember, in the twisted world of U.S. artist visas, “achievement” and “recognition” does not refer to an artist’s degree of talent, ability, technique, mastery of repertoire, or esteemed mentors. Rather, it refers primarily to the degree of an artist’s publicity and professional (non-academic) fame or infamy. In other words, an artist who has performed on Britain’s Got Talent or who has may have received a Gramophone Award for “World’s Worst Violinist” is more likely to be approved for an O-1 than an artist whose only credits are a Master’s Degree in the baroque flute and a flurry of accolades from teachers and professors attesting to her great talents and skills.

II. USCIS IS NO LONGER GIVING “DEFERENCE” TO PRIOR VISAS

Just today, we received one of the most shocking denials I have ever seen in over 20 years of preparing artist visas: the top program director of the official arts council of a large U.S. state, who has been working in the U.S. on an O-1 visa for three years and who has considerable international recognition for his expertise in arts administration and education, was DENIED a new O-1 on the basis that (a) he failed to show that he continued to be “extraordinary” since arriving in the U.S. and (b) his initial O-1 should never have been granted in the first place.

We are also currently addressing a green card application filed by a musician who is the First Chair of one of the world’s leading orchestras, with enough credits to fill a trophy case and over a decade of O-1 visas, who has been asked by USCIS to justify why it would be in the “national interest” of the U.S. for him to live here.

Whether these are isolated situations or a worsening trend, this is insane!

III. USCIS IS ASKING FOR ORIGINAL UNION LETTERS, NOT COPIES

When unions and peer groups issue no-objection letters, they will often email a scan to the petitioner with the original to follow later in the mail. To save time, petitioners will simply print out the scan and submit that with the petition. USCIS has recently been issuing RFEs for the ORIGINAL letter, claiming that this minimizing the risk of fraud.

IV. U.S.-BASED MANAGERS/AGENTS ARE BEING ASKED FOR ADDITIONAL “PROOF” OF PETITIONER AUTHORIZATION

When U.S-based booking agents or managers file petitions for their artists to perform at multiple venues, USCIS has been requiring each presenter or venue to provide a signed letter formally authorizing the manager/agent to include the engagement on the petition, even if the manager/agent booked the date in the first place and/or issued the engagement contract. Artists and groups are also being required to sign a similar letter authorizing the manager/agent to file the petition on their behalf. Whilst these authorizations literally need only be one sentence, not all presenters or venues will agree to sign these easily. The only way around this if for the manager/agent to directly employ the artist or group directly as the U.S. producer or promoter.

V. PROCESSING TIMES

However, due to a significant backlog, USCIS standard processing is taking anywhere from 1 – 3 months. Premium processed petitions continues to be reviewed within 15 days—but, remember, the processing fee was raised to $1410 last fall.

Yes, there are those out there who will tell you that they have had their petitions returned more quickly without paying for premium processing. However, that is purely anecdotal and not the norm. Even a blind bat can find its way out of cave if it bumps its head enough times.

In addition—and perhaps more significantly—there are delays in issuing receipt and approval notices (even with premium processing) as well as updating the USCIS database to reflect approvals. This is significant because (1) a receipt notice is necessary to schedule an application interview at the consulate and (2) the consulate will not issue a visa until it can confirm through the USCIS database that a petition has, in fact, been approved.

VI. U.S. CONSULATES

U.S. Consulates continue to run amuck, operating as autonomous city states subject to little to no oversight or supervision. As a result, there is a considerable lack of consistency with regard to what to expect when an artist goes to a consulate to apply for a visa.

Some consulates are asking for original approval notices as well as copies of the visa petition, even though they are supposed to ask for neither. However, predictably, we are mostly seeing this being an issue for students approved for their first O-1.
Many consulates are taking longer to process visa applications as they conduct more thorough background checks and fraud investigations. Depending upon an artist’s ethnicity and/or or past travel history, this can cause significant delays.

Again, contrary to what you may be hearing, the U.S. Consulate in London continues to be a nightmare for O-1 visas except for all but the most famous or well-known artists. If mangers or agents are telling you that their artists have had no trouble in London, congratulate them and then ignore them.

VII. ENTRY ON ESTA/VISITOR VISAS

This continues to be a significant obstacle. Please remember, except in very limited circumstances, artists are not authorized to enter and perform in the U.S. through ESTA or with a visitor (B-1/B-2) visa REGARDLESS OF WHETHER OR NOT THEY ARE PAID!

A non-U.S. artist manager was recently refused entry merely for saying that he was entering the U.S. to “help” one of his artists move out of his apartment. The immigration officer presumed “help” meant “providing professional services.” Whereas the same artist manager was permitted to enter only weeks before to attend a booking conference.

The primary issue continues to be that, even in those instances when an may be legally entitled to enter the U.S. either through ESTA or with a visitor (B-1/B-2) visa, an immigration officer the complete and unfettered authority to refuse entry to anyone for any reason.

As the rules can change at any time, it is critical that you consistently check with reliable sources (ie: not chat rooms, facebook groups, or “the collective mind”) for updates and developments before booking a non-U.S. artist or group. At the very least, it’s always best to check and confirm with multiple sources that whatever information you are given is, in fact, accurate. (As a general rule, the length of time someone claims to have been doing anything in the arts industry is often disproportionate to their actual expertise in knowing how to do it!)

As always, for official and reliable visa information, we recommend:

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)

You can also always find updated information on the “resource” page of our website: www.ggartslaw.com. And if there’s something in particular you want to know about, be sure to contact us!

_________________________________________________________________

For additional information and resources on this and other legal, project management, and business issues for the performing arts, as well as to sign up for our newsletters and follow us on social media visit www.ggartslaw.com or www.gginternationalllc.com 

__________________________________________________________________

THE OFFICIAL DISCLAIMER:
THIS IS NOT LEGAL ADVICE!

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

 

 

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

THE ARTIST VISA UPDATE FROM HELL as of July 17, 2018

Tuesday, July 17th, 2018

By Brian Taylor Goldstein, Esq., Robyn Guilliams, Esq., and Christopher Dowley, Esq.

I hope everyone is having a wonderful summer…because we are just about the ruin it. So be prepared for some serious sunburn, chiggers, sand fleas, and food poisoning as we give you the latest updates:

 

 

I.    NEW USCIS POLICY ALLOWS VISA PETITIONS TO BE DENIED WITHOUT FIRST ISSUING AN RFE

Effective September 11, 2018, USCIS adjudicators will have “full discretion” to deny visa petitions without first having to issue a “Request for Evidence” (“RFE”) or a “Notice of Intent to Deny” (“NOID”).

This new policy reverses the existing USCIS policy on RFEs, dating back to 2013, whereby, except in extreme cases where a petition was clearly deniable or there was no possibility of approval (such as requesting the wrong visa category), USCIS adjudicators were instructed to issue an RFE or a NOID and provide a petitioner an opportunity to provide additional evidence or correct any deficiencies prior to denying the petition. According to the USCIS Policy Memorandum issued (ironically) on July 13, 2018, the new RFE policy “restores to the adjudicator full discretion to deny applications, petitions, and requests without first issuing an RFE or a NOID, when appropriate.” The new policy memorandum provides the following examples of situations where a petition can be denied without an RFE:

  • If, in the sole discretion of the USCIS adjudicator, the petition was submitted without sufficient evidence; or
  • Where the petition does not contain a statutorily required form or submission.

In other words, even simple oversights such as failing to provide a no-objection letter from the correct union, forgetting to submit a contract, or merely forgetting to check a box or sign a form could result in a denial of the entire petition with no opportunity to fix the problem without re-filing the entire petition! You will only know what was wrong AFTER the petition has been denied. While there will remain an opportunity to file an appeal, appeals can take months and,   given that an adjudicator has “full discretion”, there is little change of an appeal being granted anyway.

According to the USCIS July 13, 2018 Policy Memorandum:

This policy is intended to discourage frivolous or substantially incomplete filings used as “placeholder” filings and encourage applicants, petitioners, and requestors to be diligent in collecting and submitting required evidence. 

Whilst on his way to the arctic to club a baby seal, USCIS Director L. Francis Cissna further explained:

“For too long, our immigration system has been bogged down with frivolous or meritless claims that slow down processing for everyone, including legitimate petitioners. Through this long overdue policy change, USCIS is restoring full discretion to our immigration officers to deny incomplete and ineligible applications and petitions submitted for immigration benefits…Doing so will discourage frivolous filings and skeletal applications used to game the system, ensure our resources are not wasted, and ultimately improve our agency’s ability to efficiently and fairly adjudicate requests for immigration benefits in full accordance with our laws.” 

Indulge me to offer my own translation:

“For too long, our immigration system has been bogged down with people from other countries trying to obtain visas. By gaming the system so that petitioners will no longer  know in advance why their visa petitions are being denied, we can greatly improve our ability to deny petitions more efficiently and, thereby, continue to make America great.”   

 Accordingly, we are recommending the following:

  • If you can’t decide from which union to obtain a no-objection letter, get a no-objection letter from all of them.
  • Do NOT use letters from peer organizations where there are unions that might possibly be willing to issue a no-objection letter.
  • Make sure that all itineraries include the FULL names and addresses of all venues, employers, presenters, etc.
  • If engagements have been booked through an agent, provide a copy of the written agreement between the artist and the agent, as well as proof that each venue, employer, presenter, etc. has authorized the petitioner to be the petitioner.
  • As there are no longer any second changes, throw everything you can into the petition–background materials on each venue, each award, each expert, and each publication, etc. Make no assumptions. Unless your concert pianist has also been on America’s Got Talent, the USCIS adjudicator will have no frame of reference.
  • Do not assume that just because an artist has previously been approved, that you can give less evidence the next time. Approach each petition as if it’s the first one.

Given the increased risk having a petition simply denied with no notice, we are also recommending premium processing for most petitions. At the very least, you will know sooner rather than later if you will have to re-file the entire petition.

Should you actually want to read the July 13, 2018 Policy Memorandum, pour a glass of rum and go to the following link:

July 13, 2018 USCIS Policy Memorandum 

 

II.    USCIS IS BEING TASKED WITH IMMIGRATION ENFORCEMENT

Officially, USCIS was never meant to be tasked with immigration enforcement. Rather, the purpose of USCIS was strictly limited to the adjudication or administration of immigration benefits, such as processing applications for visas, green cards, naturalization, and humanitarian benefits. Instead, Immigration Customs and Enforcement (“ICE”) was charged with the enforcement of immigration laws and violations. As a result, whilst USCIS regularly reported cases of fraud or misrepresentation to ICE, denials of visa petitions, even in instances where a beneficiary was determined to be a “status violator” (ie: performing illegally in the U.S.) or an “overstay” (ie: remaining in the U.S. after they were supposed to leave), were not.

On June 28, 2018, USCIS issued a new Policy Memorandum whereby, effective immediately, USCIS adjudicators have been instructed to issue a notice to appear before an immigration judge (“NTA”) to all beneficiaries whose lawful status expires while a petition or request is pending before USCIS!   

This will have a major impact on artists and students in the U.S. who seek to extend their O or P status, change their employer, or seek to change their status to a different nonimmigrant classification while remaining in the United States. Current Immigration laws allow a person to file a visa petition or an extension or change of status and remain in the U.S. provided the petition is filed while the beneficiary’s underlying nonimmigrant status remains valid. For example, an artist whose O-1 visa is about to expire can file for a new O-1 and remain in the U.S. so long as the new petition is filed before the artist’s current O-1 expires. However, due to lengthy USCIS processing times, it is not uncommon for the artist’s O-1 status to have expired by the time USCIS adjudicates the petition.

Under the new policy, if the petition is approved, there is no problem. But if the petition is denied, under the terms of the new policy, the beneficiary would be issued an NTA and would be required to appear before an immigration judge and, possibly, be subject to deportation proceedings.

According to the USCIS Policy Memorandum, “USCIS is updating its NTA policy to better align with enforcement priorities.” USCIS Director L. Francis Cissna paused from munching on a dead puppy to further comment:

“For too long, USCIS officers uncovering instances of fraudulent or criminal activity have been limited in their ability to help ensure U.S. immigration laws are faithfully executed. This updated policy equips USCIS officers with clear guidance they need and deserve to support the enforcement priorities established by the president, keep our communities safe, and protect the integrity of our immigration system from those seeking to exploit it”

 Permit me once again to offer my own translation:

“For too long, USCIS officers have been uncovering instances of foreigners actually entering the U.S. This updated policy equips USCIS officers with the tools needed to support the president’s policies of keeping those people out.”

Accordingly, we are recommending the following:

  • When an artist wishes to obtain a new O or P visa, advise them to leave the U.S. at the end of the artist’s current O or P classification, wait for the new petition to be approved, obtain a new visa from a U.S. consulate, and then re-enter.
  • In situations where an artist wishes to change status or extend a current status whilst in the U.S., the petition should be filed far enough in advance so that the petition can be APPROVED before the expiration of the artist’s current status;
  • The artist should engage in no performance activities (paid or unpaid) in the U.S. after the expiration date of their current visa classification.

Should you actually want to read the June 28, 2018 USCIS Policy Memorandum, pour another glass of rum and go to the following link:

June 28, 2018 USCIS Policy Memorandum

III.    ALL VISA PETITIONS FROM CURRENT OR FORMER STUDENTS WILL BE VETTED FOR STATUS VIOLATIONS

Effective August 9, 2018, when any student in F, J, or M status who was admitted to the U.S. for “Duration of Status” (“D/S”) files a visa petition for a different visa (such as an O or P), USCIS adjudicators are being directed to investigate exhaustively whether or not such student is or ever was a “status violator” (ie: performed illegally in the U.S.) or an “overstay” (ie: remained in the U.S. after they were supposed to leave.)

USCIS has never been particularly keen to approve recently graduated students for O visas, particularly if they sought to do so whilst remaining in the U.S. Regardless, under the existing, soon to be replaced, USCIS policy, when a student sought to obtain an O or P visa the student was given “the benefit of the doubt” about how long they were admitted to the U.S. before being considered to have violated their status (ie “performed illegally”) and/or remained in the U.S. after they were supposed to leave (an “overstay.”) A student who is or was in the U.S. on an F, J, or M visa was only determined to be an “overstay” or a “status violator” if USCIS “formally” determined there to be a violation of status. Even then, the student was only determined to be in the U.S. illegally AFTER this formal finding and never retroactively, or without notice. In other words, USCIS was less concerned with whether or not the student had violated their F, J, or M visa than determining whether or not the student was eligible for the O or P visa in the first place.

No longer.

Pursuant to a USCIS Policy Memorandum issued on May 10, 2018, on or after August 9, 2018, USCIS adjudicators have been instructed to pursue what amounts to a “no stone left unturned” policy whereby they are expressly empowered to asses all the available historical and background material collected on each individual student, using all the tools in the toolbox to establish a violation or overstay and consequent accrual of unlawful presence. Specifically, a student will be presumed to be unlawfully present in the U.S., without a formal finding or notice, on the earliest of the following:

  • The student fails to continue or complete their course of study, or authorized activity (including failing to completing optional practical training plus any authorized grace period);
  • The student engages in any unauthorized activity—such as performing without work authorization (even for free!)—not permitted by their F-1 status;
  • The student fails to leave the U.S. the day AFTER the date of completion of study/authorized activity and/or the approved grace period;
  • The student fails to leave the U.S. on the specific date, if any, listed on their I-94; or
  • The student stays in the U.S. after the completion of her course of study or authorized activity (including the completion of optional practical training plus any approved grace period)

Moreover, pursuant to the June 28, 2018 USCIS Policy Memorandum discussed previously, such violations will be presumably be reported to ICE.

Traditionally, when a student on an F, J, or M visa comes to us seeking an O or P visa, we have traditionally advised that, so long as the O or P petition is “filed” prior to the student’s graduation or OPT expiration (plus any grace periods) the student will not be considered an overstay. Moreover, so long as the student does not engage in any performances (even for free!), the student will not be considered to have violated their status. However, after August 9, 2018, we will be advising all students on an F, J, or M visa who seek an O or P visa, the following:

  • Do not ask for a Change of Status from F-1 to O or P. Rather, file a petition and then leave the U.S. whilst the petition is pending.
  • If they must ask for Change of Status:
    • Make sure they have significant professional (non-academic) credits and achievements; and
    • File the petition far enough in advance so that the petition will be approved before the expiration of their current F-1 status or OPT expires.

Should you actually want to read the May 10, 2018 Policy Memorandum, add some bourbon to that glass of rum and go to the following link:

May 10, 2018 USCIS Policy Memorandum

IV.    CURRENT UCSIS VISA PROCESSING TIMES RANGE FROM 3 WEEKS TO 3 MONTHS

Visa petition adjudication times at both the Vermont Service Center and the California Service Center are currently wildly unpredictable—currently taking anywhere from 3 weeks to 4 months. We have been able to find no pattern, consistency, or predictability. Moreover, as always, the USCIS case processing times website is completely useless and inaccurate. Please plan accordingly—which, for our office, usually means premium processing and then the whole office heading out for happy hour.

Can you mix vodka with bourbon? Time to find out.

V.    THE IRS HAS MADE A SIGNIFICANT CHANGE TO CWA ELIGIBILITY

Not content to let USCIS have all the fun, the IRS has announced that beginning October 1, 2018 nonresident performers must earn $10,000 or more in gross income (within the calendar year) to qualify for a CWA.

The $10,000 threshold applies to individual performers, so if individual members of a group gross less than the threshold amount, they are not eligible for a CWA.  But – keep in mind that gross income includes per diem payments, merchandise income and potential overages (not just artist fees!)

Unfortunately, performers who don’t qualify for a CWA due to the income threshold are subject to 30% withholding.

For more details, commencing banging your head on your desk and see: https://www.irs.gov/individuals/international-taxpayers/central-withholding-agreements.

VI.    AND LET’S NOT FORGET ABOUT THE U.S. CONSULATES

  • We were recently reminded by the U.S. State Department that approximately a year ago the Trump regime revoked the 2012 Obama Executive Order which called on all U.S. Consulates to shorten visa wait times. So, naturally, there are now longer wait times. 
  • Despite the fact that, officially, artists are not required to bring original I-797 Approval Notices with them when they apply for a visa at a U.S. Consulate, reports abound of consular officers hassling artists and insisting that they must have the original. Some officers are also insisting that the artist bring an entire copy of the visa petition with them. There are also increasing reports of similar requests by immigration officers upon an artist’s entry into the U.S. at the border or an airport. As a result, we are recommending:
    • That, where, possible, artists bring the original I-797 approval notice with them to the consulate; and
    • That artists be given copies of the relevant bits of their petition—which would include copies of the forms, itinerary, contracts, and a sample of the evidence.
  •  Any artist seeking to apply for his or her first O-1, should continue to avoid the U.S. Consulate in London at all costs.
  • Artists from Iran, Iraq, Libya, Somalia, Sudan, Syria, Yemen, North Korea, and Venezuela are not going to be issued visas. Don’t bother. Artists who were born in these countries, but now have citizenship in other countries, or have parents from these countries, or have ever visited these countries, MAY or MAY NOT get visas, but its going to take much longer for them to be processed at the consulate—like 3 – 4 months. In addition, artists who have any relationships, connections, or have made visits to any other countries in the world that the Trump regime does not like, also MAY or MAY NOT get visas, but its going to take much longer for them to be processed at the consulate as well. In short, who the hell knows? We don’t. Stop asking.

 Time for TEQUILA!

VII.     NEW USCIS I-907 FORM FOR PREMIUM PROCESSING 

On June 26, 2018, USCIS revised and issued a new I-907 form to request premium processing. Other than moving things around and making the form longer, nothing really significant has changed. Regardless, starting August 28, 2018, USCIS will only accept the I-907 marked 06/26/18.

Starting to feel woozy.

VIII.     SOME FINAL THOUGHTS

For those of you who have managed to read this far, click here for a rare behind the scenes look at how USCIS policy is made:

We are living in challenging times and the rules can change at any time. As always, for official and reliable visa information, we recommend:

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)  

You can also always find updated information on the “resource” page of our website: www.ggartslaw.com. And if there’s something in particular you want to know about, be sure to contact us!

_________________________________________________________________

For additional information and resources on this and other legal, project management, and business issues for the performing arts, as well as to sign up for our newsletters and follow us on social media visit ggartslaw.com

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!

 

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

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!

 

 

Tags:, , , , , , , , , , ,
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!

 

 

 

 

Tags:, , , , , , , , , , , , , , , , , ,
Posted in Law and Disorder: Performing Arts Division, Touring, 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!

 

 

 

 

Tags:, , , , , , , , , , ,
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!

 

 

 

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

« Older Entries