By Brian Taylor Goldstein, Esq.
Dear Law and Disorder:
Our organization has engaged a foreign musician whose European agent is balking at the artist having to obtain an O-1 visa that we know he needs. We want to do this right, so I’m getting my ducks in line to tell him no and part of making that case is knowing what potential penalties the organization might face for allowing him to work without the proper visa. I hope there is an easy answer that you can give me off the top of your head—or maybe there is something you can refer me to that would provide the answer.
A lot of artists and their managers balk at the U.S. visa process for artists. I understand. It’s illogical, inane, impractical, unpredictable, arbitrary, and expensive…and those are just the high points. Nonetheless, it’s the one we’re stuck with.
The “easy answer” is simply that “it’s illegal.” Artists are not permitted to perform in the U.S. without an artist visa (most often, either an O or P), regardless of whether or not tickets are sold, regardless of whether or not the artist is paid or who pays the artist, regardless of whether or not the performance is for a 501(c)(3), regardless of whether or not the performance constitutes “training” or is “educational”, and regardless of just about any scenario you can conceive of. What you are really asking is: what are the consequences for breaking the law and what are the odds of getting caught?
Both United States Citizenship and Immigration Services (USCIS) and United States Customs and Border Patrol (USCBP) have been increasingly scrutinizing artists over the last year or so. As a result, artists who have previously managed to perform illegally in the U.S. in the past without the proper artist visa are now being caught with ever greater regularity—resulting in significant consequences for both the artists as well as the presenters and venues who allowed them to perform. Last year, a violinist who had been performing in the U.S. for the past five years without a visa was caught and is now banned from the U.S. for three years. I am aware of a conductor who was turned away at the border when the immigration official discovered that he was coming to perform by “googling” his name. Another artist was advised by his management to enter the U.S. on a visitor visa to perform a promotional tour for a new album, was detained at the airport for 5 hours, and then refused entry. His ESTA/Visa Waiver privileges have been revoked and he must now visit a U.S. Consulate any time he wants to enter the US—even as a visitor. Even more significantly, a management company was caught submitting a fraudulent visa petition to USCIS and is no longer allowed to serve as a petitioner for its own artist’s visas. Large presenters, venues, and festivals are being audited with increasing regularity to determine whether or not all artists have proper artist visas.
The consequences for employing an artist illegally are the same as for any employer who employs an illegal alien. Theoretically, this can include anything from fines and economic penalties to criminal prosecution. However, from a practical perspective, the Department of Homeland Security and Department of Justice lack the resources to prosecute and investigate every venue or presenter who facilitates an illegal performance. This is why most enforcement tends to be focused on the artist at the time of entry. After the artist has entered the U.S., it’s much less likely that DHS would discover the performance unless there is an audit or the performance is reported to them. Audits are much more likely to occur either in the case of larger institutions or employers who already employ foreign workers in other capacities or in the case of prominent or significant venues or performances which are more likely to garner media attention.
In short, whenever a venue contemplates employing an artist without a proper visa or an artist contemplates performing with a proper visa, it’s akin to running a red light. It’s illegal under any circumstances. Whether or not you get caught depends on whether or not there is a camera or cop at the intersection. Whether or not it’s advisable depends on the circumstances and how lucky you feel.
If cost and inconvenience is a factor, and the artist has other U.S. engagements, a potential solution might be an itinerary-based visa covering multiple engagements. I am increasingly and puzzlingly seeing artists obtaining multiple visas rather than coordinating them amongst all of the artist’s presenters. There is no reason for this other than the visa process being all too often delegated to the “new kid” in the office.
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legal, project management, and business issues for the performing arts, visit ggartslaw.com
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THE OFFICIAL DISCLAIMER:
THIS IS NOT LEGAL ADVICE!
The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
