By Brian Taylor Goldstein, Esq.
Dear Law and Disorder:
My artist has an O-1 visa which expires in April 2015. We want to add a new engagement in May 2015. Can we just file for a “visa extension” or do we have to file a whole new petition?
Your question contains the implication that filing for a “visa extension” is somehow a different or easier process than filing “a whole new petition.” Understandably, many people like to presume that an important government agency with a lofty name such as United States Citizenship and Immigration Services (USCIS), which operates under the supervision of the even loftier agency known as the Department of Homeland Security, has employed the utmost care and sophistication in crafting procedures and regulations that are efficient, coherent, and germane to its mission. Instead, USCIS is more like an absurdist play where the role of USCIS is portrayed as a giant cockroach holding a bouquet of balloons and pushing a baby carriage full of bouncing pink puppies. Oh, yes, and the cockroach is wearing a green fedora and a polka-dot bow tie. It also periodically excretes caramel apples. Nothing is what it seems!
Simply put, the term “extension” is not a short cut around the visa petition process. Anything that requires USCIS approval–amending a visa, adding time to a visa, changing support staff, correcting a mistake on a visa, etc.—requires a shiny, new visa petition, along with the requisite petition forms, filing fees, union consultation fees, documents, and evidence. There are no shortcuts. However, in practical terms, if you are dealing with a recently filed petition, then you will probably just be cutting, pasting, and copying from the recently filed petition. Aside from the fees and costs, it shouldn’t take you much time at all.
So what does the term “visa extension” actually mean? It refers to the box you check on the I-129 visa petition form. If the artist is present in the United States, doesn’t want to leave, and wants additional time added to their visa so they can stick around and perform the additional engagement, then you check box 4(c) in Part 2 of the I-129 form indicating that the artist is present in the United States and wants to “extend” his or her visa. On the other hand, if the artist is outside of the United States and needs additional time so they can re-enter the United States to perform an additional engagement, then you check box 4(a) in Part 2 of the I-129 form indicating that the artist will either enter before their current visa expires or will pick up a new visa at a consulate. Aside from checking different boxes, everything else is the same. Either way, you are still required to prepare and file “a whole new petition.”
To address what I suspect is an additional source of the terminological confusion, there is, indeed, a provision buried in the USCIS regulations that permits an individual who holds an O-1 visa to obtain a 1 year “extension.” However, this only applies to an O-1 who will be doing the same job for the same employer under the same terms as listed on the original O-1 petition. As the O-1 visa category covers more than artists, this was intended to cover a foreign individual who holds a full time job with one employer and simply wants to keep doing what he or she has been doing (ie: a corporate executive). In other words, except, perhaps, for an artistic director or administrative position, this will rarely, if ever, be applicable to a performing artist. Moreover, as the grinning cockroach will gleefully remind you, even this requires a new petition, filing fee, forms, and supporting materials, so it doesn’t actually save anyone much in terms of time or expense anyway. Like everything else in this absurdist play, its simply there to toy with your senses
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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!
Tags: artist, Brian Taylor, Goldstein, immigration, united states citizenship and immigration services, uscis, visa category, visa petition