Posts Tagged ‘visa petition’

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A Visa Substitution Requires an Artist to Substitute

Wednesday, April 17th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

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

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

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

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

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

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

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

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

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!

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

Responsibility…Its Not Just About Visas

Wednesday, January 30th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law & Disorder:

We are facing a visa problem for one of our Russian singers.  She is supposed to sing in the United States at the end of February with a US Orchestra. Now it turns out that the orchestra is neither willing to apply nor to pay for the visa fees that would be a total of $1800 ($250 for the AGMA union consultation, plus $325 to USCIS, plus another $1,225 to USCIS to have the approval notice expedited) and the artist does not want to pay this big fee for just one engagement of 8 days. The visa petition is ready to be mailed, but now we are wondering if there is a way of reducing the costs. The singer has been to the US many times to perform, and is a member of AGMA. On the top of the visa petition, she will also have to pay $190 for an interview at the US Embassy in Moscow. Would there be a way of getting her a visa without having to pay all these costs (or at least pay less?) Help!

If the singer is a current AGMA member, AGMA may waive its $250 consult fee, but you’ll need to contact AGMA directly to confirm their current policy. Otherwise, sadly, there is no way to reduce the costs you have listed.

USCIS charges a basic filing fee of $325 for standard processing. USCIS standard processing times can vary wildly, and change without notice. USCIS has recently been processing petitions within 3 – 4 weeks of filing, sometimes even sooner. However, if you can’t take the risk, you will, indeed, need to pay an additional fee of $1225 for premium processing in exchange for which USCIS will guarantee to review the visa petition within 15 days of filing. (Remember, “review” does not guarantee “approval.” USCIS can always review the petition and still return it, asking for more evidence or supporting materials.) While there is a process by which you can ask for an “emergency expedite” and waive the premium processing fee, this is reserved for instances of true “emergencies” (ie: an ill performer requires a last minute replacement). Financial hardship won’t qualify as an “emergency.” There is also no mechanism by which to avoid the $190 visa application fee required to be paid to the consulate. (Some consulates charge even more.)

What makes this situation truly unfortunate is that all of this could have been avoided. When a non-US artist is engaged to perform in the US, who will bear the artist’s visa costs, along with who will take responsibility for preparing and filing the artist’s visa petition, is something that can and should be negotiated at the time of the engagement. I encounter far too many situations where artists are booked and, while fees and travel arrangements are discussed at length, no one discusses any of the other details that are critical to a successful engagement—such as visas and tax withholding. Managers too often assume the opera companies, orchestras, or presenters will handle it, the opera companies, orchestras, and presenters assume the managers will handle it, and the artists assume that they are paying a 20% commission for “someone” to handle it so they don’t have to. Remember, there are no industry standards!

While it won’t necessarily help your current dilemma, the solution in the future is quite simple: if you are a manager or agent, no matter how badly you want to book an engagement for your foreign artist, before you do so, confirm with the presenter or venue whether or not the artist already has a visa, will require a visa, and/or who will pay and petition for the visa. If you are an opera company, orchestra, or presenter, no matter how badly you want to book a particular foreign artist, always ask their manager or agent whether or not the artist already has a visa, will require a visa, and/or who will pay and petition for the visa. While you’re at it, you might as well negotiate and confirm everything else, too: licensing, cancellation terms, recording rights, etc. A lot of angst could be avoided if each party in an engagement contract makes it their responsibility to discuss with the other party all contingencies and potential problems that could arise. Avoiding an empty stage and an unhappy artist is everyone’s responsibility.

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WE WILL BE TAKING A BREAK THE WEEK OF FEBRUARY 4 AS WE RELOCATE OUR OFFICES.

OUR NEXT BLOG POST WILL BE ON FEBRUARY 13.

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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Posted in Agents, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Presenters, Taxes, Touring, Venues, Visas | Comments Closed

Distinguished Artists Are Extraordinary Artists!

Wednesday, January 16th, 2013

By Brian Taylor Goldstein, Esq.

Hi Musical America,

I am a Danish citizen and I plan to go to the Unites States on a promo tour in spring. I know that it is necessary to apply for an O-1B visa being a solo artist. I have a native US promoter who will petition for me. My question is: How am I going to prove that I have “extraordinary ability” as a performer to qualify for an O-1B visa? It sounds to me that you need to be either Rolling Stones or Anna Netrebko to get through the needle’s eye. My music is folk/new age/healing and it has a limited audience. I do not have a big international following or a large music sale to boast. Any advice is appreciated.

While the US government doesn’t do much to support the arts, they threw us a tiny crumb when they wrote the O-1B regulations. As opposed to other professions covered by the O-1B category (sports, business, education, and science), an artist seeking O-1B classification does not have to be “extraordinary” to qualify for an “extraordinary ability” visa. Rather, the artist has to show that he or she is “distinguished.” The applicable regulations define “distinguished” as “…a degree of achievement and recognition beyond that ordinarily encountered.” While Mick Jagger and Anna Netrebko would most certainly qualify, you do not need to be at that level to obtain an O-1B visa. Nor do you need to compare your level of achievement and recognition to all musicians in all other genres. Rather, you only need to establish that you have “some” degree of recognition and achievement within the genre of folk/new age/healing music.

In preparing your petition, you would need to provide documentation of your career and achievements to show that you are at least “distinguished” in some way. Most often, these include copies of articles, reviews, blogs, and programs from your live performances, as well as any other materials written about you. You would also want to include copies of your recordings as well as proof of any awards you have won. You would want to explain that the genre of folk/new age/healing music does not get the same degree of press and attention as other genres, but that, within the genre of folk/new age/healing music, your are at least “highly praised” or “well-known”.

The most important thing is to explain everything to USCIS. The biggest mistake most artists and agents make is preparing a visa petition, attaching documents, and failing to write a comprehensive cover letter explaining the evidence. You want to hold the USCIS examiners hand and walk them through your qualifications step-by-step. Do not assume that the USCIS examiner listens to your genre of music (or ANY genre of music, for that matter) or is familiar with your awards. Explain every nuance. Explain your achievements. Explain every detail. Above all, make sure to provide translations of anything not in English.

Everything you could possible want to know about obtaining a visa for an artist is on the website www.artistsfromabroad.org. With some time and patience, you should be able to create a visa petition to obtain your O-1B without having won a Grammy, though I sincerely hope, one day, you do!

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

Can I Re-Use an Old Union Consult Letter for a Visa Petition?

Wednesday, December 12th, 2012

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

Last year I filed a P-1 petition for a group. I obtained a consult letter from AFM. When I filed a petition for their 2013 tour, the USCIS said I needed to get a new consult letter. I thought that union opinion letters are good for 3 years? Did that rule change?

No, nothing’s changed. There’s just a bit of confusion, that’s all. Union consultations for O-1B petitions are good for 2 years provided the artist is performing within 2 years of the date of the original union consultation letter. If that’s the case, then you don’t need to get a new one. However, this has never been the rule with P-1 petitions or any other category: O-2, P-1S, etc.

So, if you obtained an O-1B for an opera singer and you have an AGMA consult letter dated October 1, 2012, then that same consult letter can be used for subsequent O-1B petitions for the singer’s subsequent engagements through October 1, 2014. You just need to be able to provide a copy of the prior consultation letter. Even if the original consult letter was written for a different petitioner, you can still use it. It’s the identity of the artist that counts. However, if you obtained a P-1 for a group and you have an AFM consult letter dated October 1, 2012, then any and all new petitions will require new consult letters.

In your case, I assume you received a Request for Evidence (RFE) from USCIS. You just need to get a new consultation letter from AFM and attach it to your RFE response. That should do the trick.

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

I’ll Show You My Visa If You Show Me Yours!

Wednesday, October 31st, 2012

By Brian Taylor Goldstein, Esq.

First and foremost: our thoughts and prayers go out to everyone recovering from and impacted by Hurricane Sandy. From property destruction to physical injuries and deaths, it has caused immeasurable damage. For those of us in the arts industry, its also caused cancellations and logistical nightmares, but performances can always be rescheduled. Now is the time for us to work together and remember what’s important.

Dear Law and Disorder:

I am writing because I am filing a visa application for a German orchestra conductor. He has been approved for an O-1 visa for a period of two years. He has multiple engagements and will need to come in and out of the U.S. during this time. I am hoping to apply for a multiple entry visa for him, however I cannot see an option to select the times he wants to come to U.S. on the visa application. Was this something I was supposed to request on the visa petition? What do I do?

Good news! There is nothing for you to do. Except with regard to a small list of specific countries, all US visas, once issued, are automatically multiple-entry!

If you visit the website of the United States State Department at http://travel.state.gov/visa/fees/fees_3272.html you will find the State Department “reciprocity” list. This contains the rules that govern the validity period of visas, the number of permissible entries, and fees charged for them. Its called a “reciprocity” list because the U.S. charges citizens of other countries whatever fees their countries charge U.S. citizens for similar types of visas and, reciprocally, limits the citizens of certain countries to visas as short as three months, and to visas valid for single entries only. In other words, the United States basically treats the citizens of other countries either as good or as bad as they treat citizens of the United States…diplomacy at its best!

For example, Chinese citizens are only eligible for single entry visas and their visas are only valid for three months at a time. So, even if USCIS approves a Chinese musician for an O-1 visa with a classification period of three years, pursuant to the “reciprocity” list, the consult will only grant the Chinese musician a visa valid for three months and a single entry. This means that, once the visa is issued, the Chinese musician has three months to enter the U.S. Once she enters the U.S., she can remain and work in the U.S. for the full three years of her approved O-1 classification. However, if she leaves at any time, she will need to return to the consulate and obtain a new visa before she can return. (NOTE: She will not need a new approval from USCIS. She merely needs to apply for a new visa at the consulate using her original I-797 approval notice.) Similarly, a Brazilian artist approved for a three year O-1 will be issued a multiple entry visa, but only valid for three months. During the three year period, they can enter and leave as often as they wish, but only for three months. After that, they must obtain a new visa.

In your case, there are no restrictions on German citizens. So, pursuant to the reciprocity list, if your conductor has been approved for a 2-year O-1, the consulate will automatically issue him a multiple entry O-1 visa valid for 2 years, during which time he can enter and leave the U.S. as many times as he likes during that period. There is no box or option to check because you are done.

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

Do We Need Visas For Orchestra Support Staff?

Wednesday, July 18th, 2012

By Brian Taylor Goldstein

Dear Brian:

We are touring an orchestra in the United States next season and have been grappling with the idea of whether the staff from the concerts team need to have visas for this tour, regardless of whether they are employees or freelance (we’ve had different opinions expressed). In the past, we have always included our orchestral manager on the visa petition because she is a full time employee, but the concerts team staff are rather different, not least because they are usually hired only for the tour, nothing else, and will not be on tour for the whole time and are therefore not an intrinsic part of the artistic production. They receive no payments or salary in the US and, thus, earn no income in the US. Do you have any thoughts on this? If we get them visas, would they all have to travel together? Would we need two separate petitions? Does this cost more depending upon the size of the concerts team?

The need for a US work visa (O or P) is triggered by work, not payment. Anyone who provides services in the US, whether on the stage as a performing artist, or behind the scenes as part of the technical crew, administrative staff or tour support team, all require work visas–regardless of whether or not they are paid in the US or whether or not they are even paid at all. Whether or not they are an intrinsic part of the artistic production doesn’t change this.

In the case of orchestras, each of the musicians will require a P-1 visa and each of the non-performing support staff require a P-1S visa. To obtain these visas, you will need to file two visa petitions: a P-1 petition for the performers, conductor, musicians, etc. and a P-1S petition listing the technical crew, management team, administrative support, etc. Filing fees are charged “per petition”, so it costs the same whether the P-1S petition contains 2 people or 20 people. Once approved, each individual listed will need to appear personally at the US consulate and pay a visa fee before being issued his or her visa by a brusque and surly consulate official. P-1 and P-1S visas are valid for the duration of the approved classification period. So, the support staff is free to travel in and out of the US during the tour as needed. Everyone neither has to travel together nor do they have to remain for the duration of the entire tour.

Without exception, in the visas we prepare for our orchestral clients, we simply put all the musicians on a P-1 and all non-musician staff on a P-1S and eliminate the ability of a border guard to frustrate a process already fraught with enough risk and unpredictability from other areas.

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For additional information and resources on this and other legal and business issues for the performing arts, visit ftmartslaw-pc.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. FTM 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!

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

I Want To Engage A Foreign Artist. Tell Me Everything I Need To Know!

Wednesday, May 30th, 2012

By Brian Taylor Goldstein

Dear FTM:

What needs to be done to bring a performing artist from a foreign country to play in a US concert? How is their pay reported to the IRS? Is withholding required? Do they have to pay taxes on the money that they earn in the US? Etc.

Wow, this is a pretty broad question. In general…and this is very general…in order for a foreign artist to perform legally in the US, he or she will need to obtain a visa. In most cases, this will be either an O or a P visa. (There are almost no instances when a foreign artist can legally perform in the US on a visitor visa—regardless of whether or not the artist is paid or tickets are sold.) In order to obtain the necessary visa, someone in the US—such as the presenter or the artist’s US-based manager or agent—will need to file a visa petition on the artist’s behalf with United States Citizenship and Immigration Services (USCIS). The petition consists of the forms, evidence, and documents required for USCIS to “approve” the artist for the requested visa. As you may imagine, USCIS also requires a petition fee. Once approved, USICS will issue an “approval notice.” The artist will then use this “approval notice” to apply for the actual visa at a US Consulate. This will involve more forms…and fees.

Depending on where the artist is from, and how much they earn, they may or may not have to pay taxes on money that they earn in the US. With some exceptions, all artists who perform in the US are subject to 30% withholding from their gross engagement fees. Then, the artist is then required to file a tax return (just like you and I), declare all payments and withholdings, claim any applicable deductions and exemptions, and seek either a full or partial refund. Alternatively, an artist can apply to the IRS in advance of his or her performance and seek a withholding deduction. As you may imagine, all withholding is reported to the IRS on a form. The artist will also need to obtain either a social security number or a taxpayer identification number. This, too, involves forms.

While this can all seem overwhelming, the good news is that everything you need to know is contained in a website: artistsfromabroad.org. Produced by the League of American Orchestras and Association of Performing Arts Presenters, and authored by FTM Arts Law, artistsfromabroad.org is the most complete and up-to-date online resource for engaging foreign guest artists and non-US arts professionals, and includes essential guidance, forms, sample documents, and useful links. Even better—the entire website has recently been fully updated, redesigned, and re-launched, making it even easier to find the information performing arts organizations and artist managers need to successfully navigate the U.S. visa and tax procedures required when engaging international artists for performances in the U.S.

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For additional information and resources on this and other legal and business issues for the performing arts, visit ftmartslaw-pc.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. FTM 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!

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

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