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Posts Tagged ‘visas’

UPDATE ON U.S. VISA DELAYS

Friday, June 19th, 2015

Hi everyone

I realize that this is outside of our normal blog posting schedule. However, understandably, there is a growing concern over the recent…and ongoing…computer crash that has resulted in U.S. Consulates around the world being unable to issue visas. This means that even artists who have been issued I-797 approval notices from USCIS are currently unable to get their visas from a U.S. Consulate.

This is a worldwide problem and is not limited to only a few consulates. It is also not limited to O and P visas.

Unfortunately, there are no contingency plans. An approval notice alone cannot substitute for a visa and without the visa, an artist cannot enter the U.S. and perform (even for delayed or no payment.) Until the computer system is fixed, visas cannot be issued.

The U.S. Department of State recently updated its website to say that they did not expect the problem to be solved before next week. Once the system is back up, priority will be given to issuing visas for medical emergencies and humanitarian cases. Sorry, concerts and performances do not qualify as humanitarian cases.

Here is a link to the current update on the U.S. Department of State Website:

http://www.travel.state.gov/content/travel/english/news/technological-systems-issue.html

For additional information, here is a link to information on the website of the U.S. Consulate in London:

https://uk.usembassy.gov/

Most major U.S. presenters and venues are (or should be) aware of this problem and are making their own contingency plans. Nonetheless, you should advise them of this situation if for no other reason than to make sure that everyone understands that this situation is entirely the fault of the U.S. Department of State and could not have been foreseen. (Step #1 in any crisis: assess blame.)

In the meantime, we are advising everyone to monitor the U.S. Consulate and U.S. State Department websites daily and take the next available appointment. There is no point in contacting the consulate or requesting an emergency appointment. Because this has impacted everyone worldwide, there are no emergency appointments or priority channels available for artists with concert or performance dates.

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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.org.

All questions on any topic related to legal, management, 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 and/or posthumously.

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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:approval notice, state department, travel, uscis, visas
Posted in Agents, Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

Understanding Legalese

Thursday, May 28th, 2015

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

Every time someone sends us a contract, its always a lengthy document with lots of legalese that no one understands. Is there anything wrong with having a simple, one page agreement that everyone can easily understand and will sign?

A lot of people mistake “legalese” for language and terms they either don’t understand or haven’t considered. They see words on a page and immediately assume they can’t possible understand them.

This is legalese:

The party of the first part, which party has previously and hereinafter shall continue to be referred to as the Presenting Party, in and for the mutual obligations, conveyances, and other considerations contained herein, the sufficiency of which are hereby acknowledged, does for itself and on behalf of its officers, directors, employees, agents, and assigns (hereinafter the “Presenting Parties”), which the Presenting Party does herein attest, warrant, and represent that it has the authority so to represent and bind under the terms of this agreement, does herein and hereby concur, agree, and consent to prohibit, prevent, proscribe and preclude, so the best of its reasonable ability, the degree and extent of such “reasonability” to be determined herein as the term “reasonable” is defined in this Agreement hereunder, the recording and/or memorialization through any and all visual and/or audio and/or audio-visual means and methodologies now existing or hereinafter discovered, invented, or devised, including, but not limited to photography, analog and digital sound recordings, videotaping, screen captures, and any other human or machine-readable medium, the performance of the party of the second part, which party has previously and hereinafter shall continue to be referred to as the Performing Party, including, but not limited to, the performance or any portion of the performance of the Performing Party, including, but not limited to, excerpts, samplings, moments, movements, scenes, rehearsals, outtakes, or other manifestations of the performance or any portion of the performance of the Performing Party, for any purposes of any kind or nature, including, but not limited to…well, you get the idea.

This is not:

The Presenter agrees to prevent any unauthorized broadcasting, photographing, recording, or any other transmission or reproduction of any performance(s) or residency activity of the Artist, or any part thereof, by any means or media now known or hereafter invented, including, but not limited to audio, visual, or audio-visual means, and including any “archival” recordings, unless the express prior written consent of the Artist has been obtained.

The difference is that the first example uses unnecessary verbiage, poor grammar, and confusing structure. The second example just has a lot of detail. Don’t confuse “legalese” with “detail.” Whereas you don’t want legalese, you do want detail. Why? Because the whole point of a written document memorializing the terms of an agreement (also known as a “written contract”) is to convey information—not just to have a piece of paper that everyone signs.

Too many people want contracts that are “simple” and “brief” so that the parties will sign them, but that’s pointless. Merely having a signed contract does not mean that an engagement won’t get canceled, that commissions will get paid, artists won’t leave, or that any number of nasty things won’t happen to you. Signed contracts are not self-enforcing. If a dispute arises that cannot otherwise be resolved, the only way to enforce the terms of a contract is with a lawsuit. Lawsuits, as you know, achieve nothing other than making trial lawyers ecstatically happy and wealthy. No one in the performing arts can afford that, either personally or professionally. You don’t want to wait until a dispute arises to find out that you and the other party had vastly different assumptions about what was and was not expected and allowed. Instead, you want to make sure that everyone understands all of the aspects of a project or engagement at the outset and, hopefully, can discuss and evaluate the risks, challenges, advantages, obligations, and expectations of the relationship before they agree to it. In other words, you use a contract to educate, not to enforce.

What determines the length of a contract is the complexity of the project or engagement itself. An agreement for a single artist to perform a single recital is going to be shorter than an agreement for an orchestra to perform a world tour. Similarly, an assignment or transfer of all rights is going to be less complex than a recording agreement or an agreement to re-orchestrate an existing work.

Our industry is blessed with amazingly creative and dynamic professionals who are second to none when it comes to creating imaginative collaborations and engaging performances. However, they become slightly less than stellar when it comes to understanding the business and legal arrangements necessary to effectuate these plans. It’s one thing to discuss dates, repertoire, scheduling, and fees. It’s quite another to consider all of the various details, challenges, and misunderstandings that might come into play: will music or other copyrighted materials need to be licensed? If so, whose responsibility is this? Can either party cancel? Under what circumstances? What if someone gets sick or there is a fire at the venue? Who bears the loss of expenses cannot be recovered? Who is responsible if an artist is injured? Who is responsible for someone in the audience gets hurt? Who is responsible if an artist or crew member damages property of the venue? Who is responsible if someone from the venue damages property of the artist or show? Will visas be required for any artist? Whose responsibility is this? Is the engagement fee to be paid in dollars, pound sterling, euros, or other currency? Which exchange rate will apply? Who is responsible for taxes? Are deposits non-refundable?

This is where a contract comes into play. Yes, it takes time to create and read all of this detail. However, a detailed contract can be filled with all sorts of interesting and mutually beneficial revelations. For example, when recently negotiating the terms of an engagement for one of our own artists, I presented our engagement contract to the presenter—which contains a clause, much like the one above, prohibiting any recordings, including archival recordings. The presenter wanted to make an archival recording and assumed, incorrectly, that these were always permitted. We were able to find a workable solution and adjusted the contract accordingly. We also discovered that while the presenter had not factored in meals and transportation into the budget, we had misunderstood when the presenter actually wanted the artist to arrive. We were able to adjust all of these issues, none of which would have been discovered had we not taken the time to think through all of the various details. In the end, it didn’t matter whether or not the contract was even signed because going through the process itself allowed the presenter and I to discuss all of the details. The contract served its purpose.

In short, a more detailed contract that makes people stop and say “wait, I didn’t agree to that” or “what exactly do you mean by this?” is far better than an artificially simplistic one that everyone signs now and then squabbles about later whilst lashing out such cherished and time-worn drivel as “but that’s industry standard” or “that’s the way its always done.”

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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.org.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:agent, assumptions, attorney, commissions, contract, Contracts, copyright, damages, dispute, engagement contract, excerpts, lawsuit, lawyer, license, presenter, recording, Tour, venue, visas
Posted in Agents, Artist Management, Arts Management, Contracts, Copyrights, Insurance, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Presenters, Touring, Venues | Comments Closed

New O and P Visa Petition Form Effective May 1, 2015

Thursday, April 30th, 2015

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

Someone recently told me that there was a new form for U.S. visa petitions for artists. Is this true? If so, when do I have to start using it?

Late last year, U.S. Citizenship and Immigration Services (USCIS) released a revised version of Form I-129—the form which is used to petition for O and P visas. While most attorneys have been using the new version of the form (edition date: 10/23/14) for several months, USCIS has been accepting both the old and new forms. That is, until now. USCIS recently announced that, effective May 1, 2015, USCIS will no longer accept the old version of Form I-129. Any visa petition submitted on or after May 1, 2015 must use the newest version of Form I-129 (edition date: 10/23/14) or USCIS will reject the petition. You can verify that you are using the correct version of Form I-129 by checking the edition date of the form at the bottom of each page of the I-129. As USCIS frequently revises forms and changes filing fees, often with little notice, you always want to download your forms directly from the USCIS website. NEVER assume a form you used before, much less a form provided by someone else, is correct.

Almost all of the information requested in the new version of Form I-129 (edition date: 10/23/14) is the same as the old form, just re-arranged in an inexplicably more confusing and complicated manner. As a result, the old I-129 form, which used to be 7 pages, is now 8 pages. The old I-129 O/P Supplement, which used to be 2 pages, is now 3 pages. You will need to read each question carefully as boxes and blanks have been moved around. There are also other hidden gems such as certain answers which must be filled in by hand where the revised form currently available on the USCIS website does not allow typed characters. (While I presume these changes and revisions make sense to USCIS, for the rest of us, it would take a herd of rabid squirrels to devise something more inane.)

The maddening inconvenience notwithstanding, there are really only two changes of any consequence worth noting, both of which are in response to what USCIS claims are increased instances of fraudulent O and P petitions:

1) The new I-129 form now requires both petitioners and anyone who prepares petitions for others to affirm that they have personally reviewed all of the information, evidence, documents, statements, and assertions in the petition and assert that everything is true and accurate. While such standards and practices have always been de rigueur for most attorneys, the new I-129 now officially places a heightened level of responsibility and liability on anyone who prepares a visa petition on behalf of someone else to assure that the petition and all evidence is accurate.

2) The new I-129 O/P Supplement now asks whether or not an artist or beneficiary has any ownership interest in the petitioning organization. This is to prevent artists and others from “self-petitioning.” While O and P beneficiaries have never been permitted to serve as their own petitioners, the previous versions of the I-129 never specifically asked this question. Now, petitioners will need to disclose whether or not any beneficiary of the petition is also an owner of the petitioner.

Whether or not there has, in fact, been increased instances of fraudulent O and P petitions remains to be seen. USCIS states that the Preparer’s Declaration has been modified to “protect the form against fraud and misuse,” noting that “visa fraud and misrepresentation, especially for employment-based petitions like Form I-129, have been the subject of a significant number of criminal prosecutions.” USCIS states that revisions to the attestation and signature sections were made at the request of the Department of Justice “to make it clear that applicants, preparers, interpreters, and representatives all have legal responsibilities with respect to the proper and truthful filing of benefit requests.” However, according to information obtained by the American Immigration Lawyers Association in fiscal years 2012 and 2013, the USCIS Fraud Detection and National Security Directorate “found fraud in 1,499 and 723 cases respectively in Form I-129 filings, which means that approximately 0.33 percent of Forms I-129 resulted in a finding of fraud.” That’s less than 1/3 of one percent. Nonetheless, it is well known that the U.S. Department of Homeland Security, which controls USCIS, has always been driven more by paranoia than reality and favours draconian measures. This perception of fraud has been responsible for the increased scrutiny of I-129 supporting evidence, along with demands for more evidence, which began in 2014 and which continues to this day. As a result, the average O and P petition prepared by our office weighs about 2 – 3 pounds! At this rate, perhaps the only ones with a legitimate right to be paranoid are trees.

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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.org.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:immigration, immigration law, petitioner, petitions, uscis, visa petition, visa petitions, visas
Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

Is It Still Illegal If I Don’t Get Caught?

Thursday, April 9th, 2015

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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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.org.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:artist, engagements, Festival, immigration, manager, musician, petitioner, presenter, Tour, united states citizenship and immigration services, uscis, venue, visa petition, visas, visitor, visitor visa, waiver, work
Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Presenters, Touring, Visas | Comments Closed

Replacement Woes

Thursday, February 26th, 2015

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

We are a dance company who is going to perform in March in the United States. We gave the list of names for Visa purposes last September to the venue. Now we have some changes, we have to replace two technicians who are essential for the show. They tell us there is a law that says that technicians cannot be replaced. Only artists. But how are we going to travel without our light and set technician? Is there any exception? Thank you for your news, we are quite desperate with this situation. Only if we could have one technician at least this would help. The thing is that we want to replace the technical director by another one who is unfortunately not in this visa list that the venue got for us. If you could just confirm me that there is really nothing to do, as they said to me (they say it is a law who does not allow to replace the technicians)

I am happy to shed some light on this, though you may quickly want me to switch it off.

Members of dance companies, theatre companies, orchestras, or any other group, band, or ensemble are required to have P-1 visas to perform in the United States—yes, even if no tickets are sold and no one is paid! For the purpose of obtaining such visas, USCIS divides the members of such companies into two groups: performers and non-performers. All of the performers—dancers, musicians, singers, actors, etc—must be listed as the beneficiaries on a P-1 visa petition. All of the non-performers—choreographers, directors, tour managers, lighting and sound technicians, stage managers, etc—must be listed as beneficiaries on a P-1S visa petition.

Once a visa petition has been submitted to USCIS, no changes, corrections, or substitutions can be made to either the P-1 Beneficiary List or the P-1S Beneficiary List without filing an amended petition (which also means paying a new filing fee.) However, once a petition has been approved, if a performer needs to be replaced, then a U.S. Consulate has the authority to accept substitutions and issue a visa to one or more new performers in place of the ones listed on the original P-1 Beneficiary List provided (1) a visa has not already been issued to the performer(s) being replaced and (2) at least 75% of the total number of performers after the substitution are made will have been performing together for at least a year.

Substitutions at a U.S. Consulate are not permitted for anyone listed on the P-1S Beneficiary List. Should technicians, directors, choreographers, crew, or anyone listed on the original P-1S Beneficiary List be unable to travel or need to be replaced, the only mechanism by which to achieve this is to go back to USCIS and file an amended P-1S Petition (which also means paying a new filing fee and obtaining a new union consultation). Similarly, no substitutions are permitted for O-1 beneficiaries, O-2 beneficiaries, or in any other visa category. Everything requires either a new or amended petition.

One solution is to add additional names of potential technician and crew substitutions as part of the original P-1S Beneficiary List at the time the P-1S visa petition is filed. If it turns out you do not need the substitutions, then these folks simply do not have to apply for their visas. However, should you need them for any reason, their names will already be on the approved P-1S Beneficiary list and they can proceed directly to the U.S. Consulate and apply for their visa. This is yet one more reason why I always recommend that, when planning or booking any foreign tour, issues such as visas, taxes, and related costs and timing should be factored in at the outset and not left to last minute scrambling and panic. What’s that I hear? Crickets and whistling wind?

_________________________________________________________________

For additional information and resources on this and other legal, projet management, 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, project management, 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 and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:dance company, last minute, manager, musician, orchestra, orchestras, performer, Tour, travel, uscis, venue, visa category, visa petition, visas
Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

Is There A Showcase Visa Exception?

Thursday, December 4th, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

We have arranged for one of our foreign groups to perform a showcase at the upcoming APAP conference in New York. Will they need artist visas? Obviously, we’d like to avoid that time and expense. The artists are all from Europe and could enter as visitors under ESTA. Couldn’t we just say that the performance is intended to educate presenters and the US market about the group and is, thus, “educational”?

Nice try. Please see the bailiff on the way out to make arrangements to pay your fines and penalties. While visitors to the US are permitted to attend seminars or engage in “short courses of study”, the education must be for the benefit of the visitor, not the audience. When traveling through the demented kingdom of US arts immigration, never take a circuitous route through the fire swamp of cute arguments and clever schemes on the rare occasion when a straightforward path may actually present itself.

The official rule is and has always been that artists cannot perform in visitor status (which means either entry with an actual visitor visa or entry through the visa-waiver/ESTA programme.) If an artist performs in the US (and does not have either a student (F) visa approved for “practical training” or a similar training-based visa such as a J or M), then the artist must have either an O or P visa. It doesn’t matter if the artist isn’t being paid. It doesn’t matter if tickets are free. It doesn’t matter if the audience is enthralled, inspired, impoverished, infirmed, intoxicated, or indifferent. Any performance in front of an audience triggers the need for an O or P visa.

HOWEVER, an artist IS allowed to enter the US in visitor and/or ESTA status and perform if the performance constitutes an “audition.” Several years ago, USCIS clarified that “showcases” at official booking conferences such as Arts Midwest, APAP, etc. could qualify for this exception provided certain conditions were met:

(1) The showcase cannot be open to the public (regardless of whether or not tickets are sold or free);

(2) The performance can only be for the benefit of registered conference attendees; and

(3) The artist(s) cannot engage in any other performances while in the US.

So, if your showcase is of the variety that are held in one of the ersatz performance spaces at the Hilton and open only to official, registered conference attendees with official, multi-beribboned badges, then you are in luck. On the other hand, if your showcase is of the kind that are held around New York City in an actual performance space where the general public will be attending, but APAP conference registrants can come for free, then your artists will need O or P visas. In other words, its not enough merely to call a performance a showcase—it must be an APAP-only showcase or it doesn’t count.

If you believe that your artists qualify for the showcase/audition exception, then I would still strongly recommend that each artist travels and enters the US with a signed letter from you, on your official letterhead, confirming their entry and departure dates and confirming that all of the above-conditions are met.

__________________________________________________________________

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 and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:artist, audition, Education, immigration, performance space, presenter, travel, uscis, visas, visitor, visitor visa, waiver
Posted in Artist Management, Law and Disorder: Performing Arts Division, Visas | Comments Closed

Avoiding A Visa Interview…Sometimes…Maybe…

Thursday, November 6th, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

I had a really interesting conversation with a consular officer at a U.S. consulate where we were having one of our groups apply for P visas. Our group has toured the U.S. many times and the officer mentioned that P class petitioners do not need to come back in for interviews if they renew their visas within 48 months of their last visa. They can just mail them in through a courier service associated with a local bank. She said that this was true in other countries as well, though the specifics are slightly different in other countries. Are you familiar with this?

Yes, I am familiar with this. What the officer is talking about is a discretionary policy whereby certain individuals under certain circumstances may not be required to have a visa interview at the U.S. consulate if they are applying for a visa in the same category as a visa previously issued to such person. However, before you get too excited, remember that nothing in the tortured realm of U.S. immigration policies and procedures is ever as simple or as straightforward as it may first seem. There are several pitfalls to be aware of.

First, this has nothing to do with avoiding the petition process. Regardless of how many O or P visas an artist may have previously held, all new O and P visas require a visa petition to be filed with and approved by USCIS (United States Citizenship and Immigration Services.) The policy at issue here is whether or not, after approval, an artist may be able to avoid physically appearing at a U.S. Consulate in order for the visa to be issued.

Second, the “interview waiver” policy is determined on a consulate-by-consulate basis and it is by no means a uniform policy at all U.S. consulates. Some consulates may allow this for O and P visas, while others may allow this only for O visas, and still others may allow this for O-1 and P-1 visas, but not O-2 or P-1S visas. And others may not allow this at all. Even where it is available, a consulate might still require citizens of certain countries to come in for an interview anyway. The only way to determine which consulates do and do not allow for visa interviews to be waived under certain circumstances and, if available, the specific process for obtaining a visa without an interview, is to check the website of the specific consulate where the artist will be applying for the visa.

Third, unless there is enough time to deal with glitches and delays, I always encourage artists to appear personally even if they qualify for an interview waiver. Why? Read on…

A pianist who had multiple O-1 visas in the past did not, understandably, want to go to yet another interview at a U.S. Consulate. So, you can imagine her joy when, upon completing her DS-160 (visa application) form on the website of the U.S. Consulate, she learned that she qualified for an interview waiver. She ecstatically selected the interview waiver option on the DS-160, mailed in her passport using the courier service…and her passport never arrived at the consulate. It was lost. Ultimately, she had to obtain a new passport and apply in person, causing a delay of several weeks and the cancellation of several engagements on her tour.

Similarly, another artist who also met the qualifications for an interview waiver, mailed in his passport and, after three weeks of waiting, was informed that he was being required to schedule an interview anyway. Even where an artist meets the requirements for an interview waiver, a consulate always retains the discretion to require a personal interview under any circumstances. Unfortunately, there’s no particular requirement that they inform you of this in a timely fashion.

As fond as I am of sweeping generalizations, they are never applicable in all circumstances. For every tale of problems or delays, there are just as many positive experiences. Nonetheless, its always safe to assume that when dealing with any situation—immigration related or otherwise—in which the outcome you seek will ultimately depend upon a harmonic convergence of timing, competency, and karma, assume otherwise and plan accordingly.

_________________________________________________________________

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.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:artist, engagements, immigration, petitioner, Tour, united states citizenship and immigration services, uscis, visa application, visa interview, visa petition, visas, waiver
Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

Plan On It!

Wednesday, October 1st, 2014

By Brian Taylor Goldstein, Esq.

We booked a tour for a folk/rock group that will be touring the US for the first time. It took a lot longer to get their visas approved because US Immigration kept asking for unreasonable things like background information on venues and festivals and even made us get actual copies of press. They also made us pay a fee to a union even though the artists are not union members. Now, the consulate is refusing to accommodate the group’s travel schedule. Because the group is on tour before coming to the US, there are only 1 or 2 days that will work for them to go to a US consulate and they will need to get the visas back the same day or the next day at the latest. We have already booked all of the flights and those cannot be changed without great cost. Its probably too late now, but, for the future, is there a way we can request a specific date and get the visas back the same day? How do we avoid all of this delay and scrambling in the future?

Unless you just arrived to our fair planet, then you probably know that the process for obtaining visas for foreign artists to perform in the United States has been significantly compromised for the last nine months or so. While there have been some minor improvements in some areas, the process has continued to be mired down with narrower interpretations of old regulations, frustrating Requests for Addition Evidence (RFEs), and stricter scrutiny. So you should expect delays and plan for them. If a visa petition was simple last year, expect it to be more time consuming this year…even if its for the same artist and group.

While both United States Citizenship and Immigration Services (USCIS) and the United States Department of State’s Consulates (which, for the record, are two different agencies) will make accommodation for emergencies, they are loathe to do so…and the emergencies have to be actual emergencies and not just scheduling or planning conflicts. This means, it needs to involve a last minute cancelation, medical emergency, Act of God, or other severe hardship which could not have otherwise been avoided by advanced planning. Otherwise, the process does not accommodate. You must accommodate the process. You simply cannot count on either USCIS or the US Consulates to accommodate an artist’s tight schedule or limited range of availability.

Your best strategy is to make a realistic assessment of the entire visa process before booking a tour or engaging an artist in the first place. While this may sound obvious, its surprising how often we see the very opposite in practice. There is a presumption that if you book or engage an artist, then all of the other logistics will magically sort themselves out. For example, at a recent arts conference, a manager made an appointment for a free consultation. Their question was that they had just taken on a number of young, non-US artists onto their roster, had already booked a number of US engagements for them at that same conference and wanted to know how hard it will be to get visas for them to perform in the US. That’s a great question, but one which should have been addressed before the manager accepted the artists onto their roster in the first place.

Too often, we see a similar scenario in large presenting organizations where the artistic planning department seems to believe that it is their job to dream big and someone’s else’s job to make sure everyone shows up. I have seen entire festivals planned, with artists engaged and travel plans made, before anyone turned to the issue of visas or other more mundane matters. The truth is that both halves need to work together…and at the same time.

Without question, the US visa process is frustrating, illogical, impractical, absurd, arbitrary, unpredictable, and expensive. What it is not is flexible. For managers and agents, its not just about signing artists that you know you can get booked. For presenters, its not just about planning performances that will sell tickets and enthrall audiences. The artists actually need to show up. That means taking into consideration, at the outset, such issues as: have there been any changes or new requirements since the last time you or the artist obtained a visa? Does the artist or group have the necessary background materials and supporting evidence required for a visa petition? Who will be in charge of the process? What are the costs and who will pay for them? What is the timeline?

Its also not enough just to turn the process over to someone else. There have been many instances where we have been brought into help obtain a visa for an artist or group who has been booked to perform in the US, only to discover that no one has bothered to advise the artist or group of the process or the considerable amount of paperwork and documentation they will need to provide. This almost always causes considerable delay and extra costs. You simply cannot book a foreign artist and ask questions later.

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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.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:act of god, agent, artist, Brian Taylor, engagements, Festival, Goldstein, immigration, last minute, manager, presenter, rfe, Tour, travel, united states citizenship and immigration services, uscis, venue, visa petition, visas, work
Posted in Agents, Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

The Recipe For Confusion

Thursday, September 11th, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

We obtained a three year O-1 visa for one of our artists. We are the artist’s agent and served as his petitioner. A large venue wants to book the artist, but they are insisting that, according to their finance department, they cannot pay us as the artist’s agent and that they must pay the artist directly as an employee of the venue. While we are willing to agree to this, the venue is also insisting that, because they must pay the artist directly, we either must file an amended petition specifically naming the venue as an employer or file a separate petition just for the venue.

Whether its dealing with visas, taxes, or employment issues, we here at GG Arts Law often find ourselves in loggerheads with CFOs, finance departments, HR directors, and others, especially at large venues and organizations, who seem to use the same recipe when developing policies and directives: Take one very broad workshop which they attended several years ago and is now outdated, add an opinion from a board or volunteer attorney who doesn’t actually specialize in the topic at issue, stir in some research done by an intern, mix well with incorrect anecdotes from peers and colleagues, add a dash of ego, bake well, and insist this is the law.

In your particular situation, the venue appears to be confusing several key concepts: (1) the nature of itinerary based visas for artists; (2) the ability to add additional engagements when an artist is on an itinerary based visa; and (3) the relationship (or lack thereof) between employment law and immigration law.

Itinerary Based Visas:

Most immigration scenarios contemplate a single employer submitting a petition on behalf of a non-US individual whom they wish to hire. In those instances, the employer submits an I-129 petition to USCIS and, once approved, the name of the employer will appear on the I-797 approval notice authorizing the individual to work for the employer. If the individual wants to work for more than one employer, then each employer needs to submit its own I-129 petition.

However, there is an exception for artists: The applicable immigration regulations recognize that O-1 artists of “extraordinary ability” typically come to the US to perform “on tour” and, thus, will have multiple employers who hire them to perform. In such cases, a single petition may be filed with USCIS covering all of the artist’s engagements with multiple employers in the US. These are known as “itinerary-based” O-1 visas because, as opposed to covering a single performance, the petition includes an “itinerary” of performances and engagements with multiple employers.

So, for example, let’s say that an opera singer is hired to perform at the Metropolitan Opera, San Francisco Opera, and Seattle Opera. While each venue could certainly file its own, separate I-129 petition, the Metropolitan Opera could be designated as the singers “agent” and submit a single petition on which it also lists the singer’s engagements at San Francisco Opera and Seattle Opera. As the petitioner, only the Metropolitan Opera’s name would appear on the I-797 approval notice. However, because all three venues were listed on the singer’s “itinerary” the singer would be authorized to perform for all three. Alternatively, if the singer had an actual US agent or manager, the singer’s agent could serve as the petitioner and serve as the petitioner and submit a single I-129 petition to cover all three engagements. Again, as the petitioner, only the agent’s name would appear on the I-797 approval notice. However, because all three venues were listed on the singer’s “itinerary”, the artist would be authorized to perform for all three.

Adding Additional Engagements:

Continuing with this example, let’s suppose that after the singer arrived in the US, the singer was contacted by Washington Opera and asked to replace another singer who fell into the orchestra pit and can no longer perform the role. This last minute engagement would take place between the singer’s engagement with San Francisco Opera and Seattle Opera. Does Washington Opera have to file its own separate I-129 petition? No. Does the petitioner of the singer’s original I-129 petition have to file an amended petition “adding” this new engagement? No. Provided that additional engagements occur within an artist’s approved or existing O-1 classification period, and provided that the engagements or services are consistent with the artist’s O-1 qualifications (ie: performing, teaching, master classes, residencies, etc.), the artist is legally permitted to add and perform such additional engagements without the necessity of anyone filing an amended petition or otherwise notifying USCIS of the additional employers. The triggering factor is whether or not an artist was on an itinerary based visa with multiple employers to begin with. (By contrast, if an artist wants to add an engagement or performance that would take place after the period of the artist’s approved or existing O-1 classification period, that would require a new or amended O-1 petition to be filed.)

The Immigration Implications of the Employment Relationship:

Many people see the word “employer” used throughout US Immigration Law and its applicable regulations and presume that it has the same connotations as when used in the context of a traditional “employer-employee” relationship. It does not—particularly in the context of O and P artist visas. US Immigration Law uses the term “employer”, at least in the context of O and P artist visas, to refer to anyone who hires or engages the services of an artist in any capacity regardless of how the employment relationship is structured. A petitioner is neither presumed nor required to be the artist’s actual employer under any circumstances. Moreover, it doesn’t matter who pays whom or whether the artist is paid as an independent contractor or an employee, or even whether the artist is paid at all. This is because US immigration law does not use payment, or lack thereof, as a determinative factor in whether or not an artist requires an O or P visa. If an artist performs in front of an audience or otherwise provides professional artistic services in the US, such artist is required to have either an O or P visa regardless of whether or not the artist is paid, tickets are sold, or the artist receives any compensation from any source directly or indirectly. Thus, while the petitioner of an itinerary based I-129 O-1 petition can also serve in the dual role of one the artist’s employers, there is no requirement under any aspect of applicable immigration law that the petitioner actually serve as one of the artist’s employers, much less that all employment and payments go through the petitioner, or anyone else for that matter.

In short, so long as the artist is on a valid, itinerary-based O-1 visa, anyone can hire and pay the artist, directly or indirectly. Who pays the artist and how are all contractual issues to be negotiated between the parties and not immigration issues.

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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.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:agent, approval notice, artist, Brian Taylor, contract, engagements, Goldstein, immigration, immigration law, independent contractor, manager, payment, petitioner, uscis, venue, visas, work
Posted in Agents, Artist Management, Arts Management, Employees, Law and Disorder: Performing Arts Division, Presenters, Taxes, Touring, Venues, Visas | Comments Closed

Welcome To The New Visa Reality!

Thursday, July 24th, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

We filed visa petitions for O-1 and an O-2 visas. USCIS is asking for a contract between each of the O-2s and either the petitioner or the employers. This has never been an issue before and we’ve been doing this for 20 years. They are also asking for a union consult letter for one of the O-2s whose title is “Movement Coach.” We got a consult from IATSE for the others, but IATSE doesn’t cover this. USCIS is suggesting that we get a consult from AGMA. Do we have to do that? Can we use a letter from a peer organization like TCG or APAP instead?

Thanks for giving me an excuse to rant about USCIS and the new challenges of obtaining visas for artists who wish to perform and tour in the U.S. I haven’t done that for almost a month now.

Both the Vermont and California Service Centers continue to shoot back frustrating Requests for Evidence (RFEs) and to scrutinize petitions like never before. They appear to be paying special attention to O-2, P-1S, and P-3S petitions for support staff. It has now become de rigueur for USCIS to require that employment terms for each member of the support staff be specified, including who is paying them and how much they are being paid. They are also asking for resumes for each person and a specific statement of why each person is necessary and critical to the performance or concert.

You can also expect new troubles with P-3 petitions for culturally unique artists and groups. While P-3 petitions have always had their own complexities, both service centers are now reiterating that an artist or group cannot be culturally unique and also perform anything that is “contemporary” or “modern.” One RFE I saw stated that: “The contents and themes of a particular form of art may also contain elements and influences of a given culture, and yet still not meet the definition of “culturally unique.” Also, simply because a form of art may be unique, it does not necessarily follow that it meets die regulatory definition of “culturally unique.” Another USCIS examiner recently wrote:

It is not enough for the author of a testimonial letter to simply state that the beneficiaries have cultural, artistic, and/or culturally unique skills. The testimonials should be detailed and specific in describing what the beneficiaries’ skills are; how the beneficiaries obtained those skills; how and why those skills are associated with a “culturally unique” art form; and what the defining aspects of the beneficiaries’ particular art form are that make it “culturally unique” as opposed to other forms of the creative activity or endeavor. Furthermore, it is not sufficient to simply state that an artist represents his or her culture.

Speaking of testimonial letters, I am continuing to see USCIS request “independent evidence” establishing that each expert is, in fact, a “recognized expert.” Whether or not this means that the experts must now have experts, simply attaching the expert’s resume is no longer sufficient. USCIS is continuing to ask for articles and websites verifying each expert’s credentials.

In addition to targeting P-3 petitions and petitions for support staff in all categories, USCIS also appears to be focusing the all-seeing eye of Sauron on young artists, particular recent graduates who may still be in F-1 status. Any appearance of the words “young” or “rising” or “up and coming” will bring a certain RFE. You also need to focus on the “professional” work of the artist and put as much distance as you can between the artist and any school or training experience.

As for union consultations, letters from peer groups and service organizations have never been an alternative where a union covers the specific job title. However, while USCIS may have let this slip in the past, this is no longer the case. If they even smell the applicability of a union, then you must provide evidence of a union consultation (which could include a union objection. Remember, the unions do NOT have to approve any petition. They only have the right to be “consulted.”) In your case, USCIS is correct: AGMA is the appropriate union for a “Movement Coach.”

USCIS is also being remarkably inconsistent in processing times, as well. Just this week, I received an approval notice from the California Service Center three days after the petition was filed—and without premium processing! I’m not complaining, but the same service center took over three months to adjudicate a petition I filed in April. More recently, the Vermont Service Center approved a P-1 petition in two weeks, but lost the accompanying P-1S petition I had filed at the same time. This only serves to make an already unpredictable process even more unpredictable. The only thing I can say with certainty is that the “official” reported processing times that you will find posted on the USCIS webpage are about as reliable as a cheesecloth condom!

The best you can do at this point is exhaustively document your petitions, allow lots of extra time, plan for the worst, anticipate USCIS stupidity, and, with any luck and few talismans, be pleasantly surprised. In short, whatever you did in the past, all that changed after January 2014. Welcome to the new visa reality!

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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.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:agma, approval notice, artist, Brian Taylor, consultations, Goldstein, petitioner, petitions, processing times, rfe, support staff, Tour, uscis, visa petition, visa petitions, visas, work, young artist
Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

Musical America Blogs

Posts Tagged ‘visas’

UPDATE ON U.S. VISA DELAYS

Understanding Legalese

New O and P Visa Petition Form Effective May 1, 2015

Is It Still Illegal If I Don’t Get Caught?

Replacement Woes

Is There A Showcase Visa Exception?

Avoiding A Visa Interview…Sometimes…Maybe…

Plan On It!

The Recipe For Confusion

Welcome To The New Visa Reality!

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