Posts Tagged ‘immigration law’

Newer Entries »

Too Fast and Furious To Get A Visa!

Thursday, February 20th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

We filed a P-1 petition for an orchestra that is to perform at our venue. The petition was approved and it includes the orchestra’s conductor. However, the conductor just informed us that he does not want to go the consulate and apply for his P-1 visa (he says he just doesn’t have time for such an inconvenience.). Instead, he wants to enter as a visitor on the ESTA/Visa Waiver Program. He claims he did this when the orchestra toured the United States last year, including performing at our venue, and there was no problem, so he wants to do it again. We never realized he performed for us last year as a visitor. Are we in trouble? What if he insists on doing this again this season? What are the risks for us and for him?

Unless this is the conductor of the Hogwarts Symphony Orchestra, he seems to be laboring under the misbelief that he can waive his magic baton and dismiss anything he finds unpleasant, inconvenient, or displeasing. If only that were true.

Your situation presents several problems, the first and most immediate being that, under U.S. Immigration Law (however, inane we may all agree it is), an artist is not allowed to perform in the U.S. while on a visitor visa. Regardless of whether or not tickets are sold and regardless of whether or not the artist is paid in the U.S. or abroad (or even if the artist performs for free), no performance activities are permitted while an artist is in visitor status. Unless an artist has been admitted on an O or P visa, or has been admitted in some other applicable work authorized classification, any performances are illegal.

Technically, as the presenter/venue, you are supposed to verify the work authorization of each artist who performs for you. Had the conductor presented his visa (or lack thereof) to you last season, it would have quickly been discovered that he was not authorized to perform.  On the slim chance you were ever audited for immigration compliance, your venue could be found to have violated U.S. Immigration law by facilitating the illegal performance of a non-U.S. artist without proper work authorization. Penalties could range from fines to the greater scrutiny of future visa petitions.

I understand that, in this case, the conductor in question was able to enter the U.S on the ESTA program, perform, and leave without issue. He was lucky….and so were you. While I can see the temptation to try the same deception again, especially for a busy conductor who does not want to make a trip to a U.S. Consulate, such luck cannot continue indefinitely.

While U.S. Consular Officers and U.S. Customs and Border Protection Officers are as vigilant as possible, they cannot catch every violator on every occasion. The situation is much like running a red light, or committing any other criminal or penal violation, without getting caught. The lack of an arrest does not make the crime any less illegal. In this case, however, the penalties for an immigration violation can be more severe than a mere traffic ticket.

For an artist, presenting oneself at the border and asking for admission as a visitor, when the artist, in fact, intends to perform illegally constitutes a fraudulent misrepresentation to a federal law enforcement officer and constitutes a felony. If caught, the artist can be subject to immediate deportation as well as restrictions on future travel, visas, and work authorization. While I am familiar with many Non-U.S. artists who have managed to sneak in and out and perform as visitors on various occasions, I am also familiar with many who have been caught, even after years of being undetected.

In one case in particular, an internationally known artist who had held multiple O-1 visas over the course of his career, found himself with an approved O-1 petition, but unable to find the time to travel to a U.S. Consulate for an interview and to receive a physical O-1 visa. Instead, he entered as a visitor. Much to the dismay of him and his management, he was discovered. Because of his notoriety and international standing, he was not deported. However, because of his attempted fraudulent entry, his visitor privileges were revoked and for the next six years he was required to seek a “waiver of inadmissibility” every time he went to a U.S. Consulate to apply for a visa. Such a waiver adds an extra 2 – 3 weeks of processing time to the issuance of a visa.

I am also familiar with a management company whose future immigration petitions have been consistently flagged for extra review and processing when it was discovered that there were knowingly assisting artists in filing deception P-1 petitions.

As you can see, I would strongly advise the conductor that the immediate temptation of avoiding the time and hassle of a trip to the consulate is outweighed by the potential loss of his ability to travel and work in the U.S. Ultimately, if he decides to continue running the red light on the assumption that he won’t get caught, you and your venue should not be required to go joy riding with him.

_________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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

Beware of Simple Answers!

Thursday, December 19th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

I work with an artist whose current US visa expires in January 2014, but he has one engagement in the US on March 8, 2014. The promoters are saying that he won’t need to renew his visa and can just use ESTA, however, we were under the impression that he would need a valid US visa. Is this correct?

You are absolutely correct. He will require an O-1 visa.

ESTA stands for “Electronic System for Travel Authorization.” ESTA is an on-line registration system for citizens of countries who participate in the United States Visa Waiver Program (“VWP”). Citizens of VWP countries are not required to visit a US consulate and apply for physical visitor visa (B-1/B-2) to enter the US as visitors. Instead, they are only required to have a valid passport from a VWP country. However, they are required to register on-line through ESTA and be pre-authorized before they can enter the US.

The key, of course, is that the VWP program only allows citizens of VWP countries to enter the US as “visitors.” As such, they can only engage in visitor permitted activities: shopping, sightseeing, business meetings, etc. Under US Immigration Law (frustrating and circuitous though it may be), professional artists who enter the US as visitors are not permitted to engage in ANY public performances–regardless of whether or not an artist is paid, regardless of whether or not tickets are sold, regardless of whether or not the performances is for a benefit or a gala, regardless of whether or not the performance is for a university or non-profit, regardless of whether or not you can afford the visa process, regardless of whether or not the artist lives 100s of miles from the nearest US consulate, regardless of whether or not the artist has previously performed in the US as a visitor, etc, etc.

While artists frequently do sneak in as visitors and perform, this poses far more risk to the artist than to the venue or promoter. If the artist is caught, the worst that happens to the promoter or venue is that the artist can’t enter the US and the concert may have to be cancelled. However, a fraudulent VWP/ESTA entry can result in the artist having his VWP privileges revoked, or worse.

I am currently working with a prominent artist who wanted to take a last minute engagement, didn’t have time to petition for a visa, much less go to the consulate, and decided to enter the US as a visitor. Unfortunately, his concert had been prominently advertised, he was caught by the one of the few border officers who actually follow classical music, and was refused entry. For the next five years, the artist must now formally request a “waiver” anytime he wants to obtain a proper O-1 visa to perform in the US. As you may imagine, this has caused considerable stress to his management because a “waiver” request adds an additional 3 – 4 week delay in processing the artist’s visa. In addition, his VWP privileges were revoked, meaning that he must go through the time and hassle of applying for a formal B-1/B-2 visitor visa even if he legitimately only wants to enter the US as a visitor.

I doubt seriously that the promoter was intentionally giving bad advice. More than likely, the promoter was ill-informed. Which only underscores the responsibility of each of us to take the time to learn and figure out the correct answers for ourselves rather than rely on hearsay or anecdotal information. Whether you’re dealing with visas, taxes, licenses, or liability, if the answer seems too simple, it probably is.

________________________________________________________________

Hi Everyone! “Law and Disorder: Entertainment Division” will be taking a holiday break. Our next post will be on January 8, 2014. Many thanks for a wonderful year of great questions and challenges. Keep them coming! 

OFFICIAL HOLIDAY WISH CONVEYANCE

From Brian Taylor Goldstein and Robyn Guilliams (collectively, the “Wishor”) to you (“Wishee”):  

Please accept without obligation, implied or implicit, and weather permitting, our non-assignable and non-exclusive best wishes for a sold out, standing room only, royalty abundant, lavishly licensed, critically acclaimed, non-cancelable, infringement free, profusely booked, copiously commissioned, richly funded, tax-exempt, crisis deficient, and artistically inspired celebration of the winter solstice holiday, practiced within the most enjoyable traditions of the religious and/or secular persuasions of your choice, including their choice not to practice any such religious or secular traditions, along with an environmentally conscious, socially responsible, spiritually enlightened, politically correct, low stress, low carb, high HDL, non-addictive, financially successful, personally fulfilling, and medically uncomplicated recognition of the onset of the generally accepted calendar year 2014, but with due respect for the calendars of choice of other cultures or sects, and without regard to the race, creed, color, age, physical ability, religious faith, choice of computer platform or operating system, mental and/or physical incapacities, visa classification period, sexual preferences, political affiliations, and/or dietary preferences of the Wishee.

_________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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

Showcasing: A Rare Visa Exception

Wednesday, August 28th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder

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

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

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

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

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

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

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

__________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

Student Visas: A School for Scandal?

Wednesday, May 8th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

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

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

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

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

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

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

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

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

__________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

Newer Entries »