Posts Tagged ‘visas’

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The Lost Art of Negotiation

Thursday, June 12th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

A longtime friend who is also a very successful artist who I greatly respect, asked me to do a project with him. He sent me a contract, but it doesn’t cover things like when and how I get paid. I want to mark up the contract and suggest some language, but I also don’t want to offend him and have him think I am being too difficult to work with and ungrateful for this opportunity. Is there some specific language I can put in the contract that he won’t find offensive, but will still protect me?   

I had a client of mine call me today about a contract she had sent to a promoter who then struck out a specific term that my client needed and sent the contract back to her. Frustrated and desperate to make the deal happen, she wanted me to suggest another way to phrase the term in such a way that the promoter would agree to it. Both you and my client are asking very legitimate questions, but the answers have little to do with contracts and everything to do with business and negotiation skills.

Contracts exist to memorialize an agreement. You can’t memorialize something that doesn’t exist yet. That’s like trying to take a photograph of a place you’ve never been. Before a contract can be properly drafted, much less signed, the parties have to discuss all of the key terms. While you can certainly use a contract to begin the discussion, you can’t avoid the discussion by simply crossing out terms you don’t like and inserting the ones you do. More importantly, there are no magic words, standard terms, or compelling phrases that will take the place of the need to discuss and negotiate.

Too many people in our industry try to use a contract to avoid negotiation—most often for the very reasons you mention: they are too scared of offending the other party, of not getting the terms they need, or of losing a deal or opportunity they really want. However, if you approach a negotiation as a game of deception in which the goal is to use illusive or even deceptively simplistic language or aggressive tactics to cajole the other party into agreeing to something unreasonable or something to your advantage which they would not otherwise agree to (ie: Lawyering 101), then you most certainly should expect the other side to be offended and deserve to lose the deal. On the other hand, if the other party is offended by a legitimate expression of your concerns, sincere questions about a specific term, or proposals that would clarify something you find confusing, then its probably either a deal you don’t want in the first place or a party you don’t want to work with. Just as importantly, if someone doesn’t agree with a term you want, they are not going to agree no matter how you phrase it. Phrasing the same thing in a different way isn’t going to help either. Even if you manage to word it in such a way that they can’t tell what they are agreeing to (what a lot of people refer to as “legalese”), then you’ll have to sue them to enforce it. Instead, you’ll either need to negotiate a compromise or evaluate whether or not the deal is equally advantageous to you without that term.

I have been to many purported lectures on negotiation at arts conferences, only to find that the lecture was really just about how to get presenters to book artists. That’s important, of course, but the real art of negotiation involves far more than discussing date, time and fee. Whether it is a commission, a booking, a production, or a recording, you must discuss and negotiate not just the artistic and logistical elements, but all of those nasty and boring business elements as well—such as liability, insurance, rights, licenses, approvals, exclusivity, taxes, visas, etc. If you are unfamiliar with the necessary business elements of a deal, the time to learn them is before you negotiate, not during the process.

A negotiation does not mean you will get what you want. Rather, a negotiation is a process that allows you to evaluate whether or not you will get what you need. Some opportunities are just that—opportunities—and a good opportunity may require you to accept some risk. But without taking the time to talk and discuss, you won’t have the information you need to access that risk properly. In other words, the negotiation process will save you from disappointment and frustration later on.

As for an answer to your specific question, I would say: Protect you from what? If your “longtime friend who is also a very successful artist who [you] greatly respect” breaches your contract, are you prepared to sue him? I thought not. I suggest you call your friend and ask him when and how you get paid. Don’t ever be scared to ask a legitimate question—especially when dealing with a friend. In the bi-polar cocktail of simultaneous love and resentment we call the arts world, doing business with friends demands an even higher degree of mindful discussion than doing business with strangers.

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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 and/or posthumously.

__________________________________________________________________

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 Acts of God, Agents, Artist Management, Arts Management, Contracts, Copyrights, Insurance, Law and Disorder: Performing Arts Division, Liability, Licensing, Music Rights, Presenters, Publishing, Recordings, Taxes, Touring, Venues, Visas | Comments Closed

The Invasion of the Visa Examiner Body Snatchers Continues! (aka “The Day The Visa Process Stood Still”)

Thursday, May 8th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

I recently received an RFE for a group touring the US this summer. The group is represented by a European manager who books their dates, but our US management company has previously filed petitions for them in the past, all of which have been approved without a problem. The RFE claims that I need to prove that we are not only the agent for the artists, but for each of venues on their tour. I provided an itinerary, a letter of agreement between us and the group where we are agreeing to serve as their US representatives, as well as engagement contracts confirming all the dates, including fees. This is what I have always given them before. What do they want?

For those of you who have been lucky enough not to be following along, about four months ago, the US government agency that reviews and approves visa petitions for artists, United States Citizenship and Immigration Services (USCIS), was invaded by aliens…and, by that, I do not mean non-US citizens, but something non-human. It began at the USCIS Vermont Service Center where reports indicate that in early February 2014 the bodies of several unsuspecting USCIS visa examiners spontaneously exploded into a burst of tentacles, multiple glowing eyes, and gaping orifices of dripping fangs. Shortly thereafter, their seedlings were able to infiltrate deliveries of pico de gallo sent to the USCIS California Service Center where they quickly replicated themselves, consuming the bodies of helpless visa examiners there as well. Ever since, these insidious creatures have taken over the review of O and P petitions, resulting in flurry of spurious RFE’s or Requests for Evidence (ie: prove that Lincoln Center is a distinguished venue!) and re-imagined interpretations of regulatory language and requirements (ie: for a role in a production to constitute a “lead or starring role” it must also be performed by an artist whose name alone will demonstrably increase ticket sales!)

Whether these beings are the evil spawn of a far-away galaxy offended by interpretive dance or whether they come from a death star of Blue Meanies, we don’t know. What we do know is that, among other things, USCIS has been seriously scrutinizing petitions filed by agents and managers, as well as itineraries. On a recent national conference call with USCIS representatives, there was a considerable amount of talk about concerns over “speculative” employment and making sure that artists had “confirmed engagements” and were not merely asking for visas in anticipation of future work.

As a result, agents and managers are being asked with greater frequency to provide proof of the agency relationship, including proof that they are authorized to represent both the artist as well as the presenters/venues. This can be either a written (and signed) agency or management agreement with the artists or a letter or other statement signed by the artist confirming that the artist has “appointed” the agent or manager to represent them in the United States. If the agent/manager has also booked all of the engagements (ie: the agent/manager’s name appears on each of the contracts or engagement confirmations), then such a letter of appointment appears to be appeasing the visa beasts…at least for now. However, many times either the artist has booked their own engagements directly with the presenter/venue or the engagements have been booked by a non-US agency and the US agent or manager is merely serving as the petitioner for purposes of filing the visa petition. In such cases, which appears to be your situation, USCIS is asking for proof that the US petitioner has been authorized to file the petition by the artist (or the artist’s non-US agent) as well as by the artist’s non-US agent and, in some cases, by each of the presenters/venues on the artist’s itinerary.

Based on a strict regulatory analysis, I cannot say that this is inappropriate. Rather, its just a very literal reading of certain regulations which have never been strictly enforced until now. Regardless, unless you have booked each of the artist’s engagements yourself, if there are any engagements booked directly between the artist and the venue/presenter, then you also need to include an “appointment form” from those presenters/venues authorizing you to include their engagement on the petition. If the artist has a non-US agent or manager, then you will need (1) proof of the relationship between the artist and the non-US agent and (2) proof that you have been authorized by the non-US agent to file the petition for the artist and on behalf of the engagements booked by the non-US agent. If there are any engagements booked directly by the artists, you will also need proof from the presenter/venue that you are authorized to include their date on your petition. The good news, such as it is, is that such “appointment form” does not need to be anything more elaborate that: “I have engaged [Artist] to perform for me. I hereby appoint [Petitioner] to include this engagement on the visa petition.” That’s it.

We’ve actually been doing this for a while. Whenever our management division acts as petitioner, we include appointment forms from everyone—our theory being: the more paperwork we throw into a petition, the more there’s bound to be something in there a US examiner is looking far. We apply this same theory to reviews, programs, and all other evidence as well. So far, this has worked.

As I mentioned, I have participated on several recent national conference calls with USCIS officials and, on each occasion, they have declared no knowledge of any new practices, rules, requirements, or regulatory interpretations designed to frustrate or scrutinize the O and P visa process. Instead, they claim to have helpfully appointed a panel of “performing arts experts”—three, to be exact, who, near as I can tell, have little, if any, actual practical familiarity with what we do—to help come up with suggestions to solve problems they claim do not exist. In other words, to translate this into government-speak:

There is no problem, but if there is a problem, we have appointed a panel of experts unfamiliar with the problem to help come up with solutions to address the non-existent problem which doesn’t need addressing, because there is no problem, but we promise we will make it better by focusing on fixing things that were not broken in the first place…until they were broken…but not by us.  

On second thought, perhaps these invaders aren’t from another planet after all.

_________________________________________________________________

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 and/or posthumously.

__________________________________________________________________

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, Touring, Visas | Comments Closed

Beware of Easy Solutions

Thursday, April 17th, 2014

By Brian Taylor Goldstein, Esq.

A conductor we manage has been invited to conduct one of the orchestras of a University in the United States later this year. He has worked there once before when he conducted performances when he had a J-1 visa. On this occasion however due to the short length of the engagement (6 days), they have suggested that he should apply for a B-1/WB Business Status. The advantages of this is that the artist can do it himself, online, up to 72 hours before his departure and that the cost is approximately $4. The person I am dealing with at the University sent me “guidelines” which say that a person can enter the US on B-1/WB Business Status Visa, and receive an honorarium, as well as be reimbursed for travel and a per diem, if they will be a “lecturer or speaker” at a university or academic institution. They also told me that because our conductor is a citizen of a country that participates in the visa waiver program, he doesn’t even need to apply for such a visa and that it will be granted at the airport when he arrives. All he needs to do is register online for ESTA. This sounds too good to be true! I am very worried that this will not work. Otherwise, the university says we will need to get another J-1 visa.

Unfortunately…or, fortunately…your instincts are correct. The process for getting artists approved to perform in the United States can be so daunting to some that it is understandable that they look for easy or simple answers. With any legal issues—not just visas, but taxes, licenses, contracts, insurance, etc.—if something sounds too good to be true, that’s often the case.

B-1/WB Business Status (which, more accurately, is simply referred to as a B-1/B-2) is just the more formal name for “visitor status.” A B-1/B-2 (“visitor”) visa allows individuals to enter to the United States for visitor activities (touring, shopping, etc.) as well as certain business activities (meetings and conferences). B-1/B-2 status also permits an individual to be a lecturer or speaker at a university or academic institution, and receive an honorarium as well as travel reimbursement and a per diem.

A B-1/B-2 (“visitor”) visa can only be issued by a US Consulate. However, if an individual is a citizen of a country that participates in the Visa Waiver Program, then, by registering on-line with ESTA (Electronic System for Travel Authorization), he or she does not need to obtain an actual visa and are allowed to enter the US as visitors with only a valid passport. All of the restrictions applicable to visitors will apply—including the too often overlooked fact that an artist can never perform in visitor status, regardless of whether or not the artist is paid or unpaid.

Contrary to the “guidelines” you were provided by the university, your conductor is NOT a “lecturer or speaker.” If he is being engaged to conduct an orchestra then that is considered a “performance”, not a lecture or speech, and he is required to have an O-1 visa. The school is also wrong about the J-1 visa. This is not applicable. That is for an “exchange” program, which is also inapplicable in the case. Your conductor needs to obtain an O-1 visa.

 

_________________________________________________________________

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!

 

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

US VISA WARNING: Beware of the Vermont Service Center! Abandon All Hope Ye Who File There!

Thursday, March 6th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder

We filed P-1 and P-1S visa petitions at the Vermont Service Center for a group we have been touring regularly for the past 5 years. This would have been their sixth P-1 visa. Last year, we were getting petitions approved in about week. This time, after waiting 4 weeks, we got a notice asking us for a copy of our contract with the group, among other items. We’re the agent and never had to provide this before. They also wanted our contract with the group’s tour manager. We don’t have a contract with the group’s tour manager. We explained that and the P-1S petition got denied. But this same tour manager was approved last year and we supplied the same evidence this time that we did last year. What’s going on?

I wish I knew. After a period of uncharacteristic, but welcome, efficiency and competency for almost a year, the USCIS Vermont Service Center has imploded. Whether they were hit by a radioactive meteor, unearthed a demonic spirit living beneath the mail room, or were attacked by brain-eating zombies (who doubtlessly left disappointed and hungry), we may never know. What we do know is that we have been receiving multiple reports from all sectors of the performing arts reporting major problems with the Vermont Service Center, including significant processing delays, inane RFEs (Requests for Evidence), and even outright denials for O and P artists who have previously been approved for O and P visas.

The League of American Orchestras, in collaboration with the broader performing arts community, is submitting a formal complaint, as is AILA (the American Immigration Lawyers Association). In the meantime, here is a list of some of the most serious problems we have encountered and some suggestions on how to address them:

1. Processing Delays.

As many of you may recall, USCIS entered into a voluntary commitment to improve processing times for artist visas and, as recently as December 2013, regular processing times for O and P visa petitions were averaging 2 weeks or less. For the last year, our clients rarely had to pay the extra $1225 for premium processing. However, as most of you know all too well, the problem with anything “voluntary” is that you can’t force a volunteer to do anything. While the USCIS website continues to list an average timeframe of 14 days for regular processing of O and P visa petitions, the reality is that it is currently taking 30 days or longer. In some instances, VSC has taken over two weeks just to issue a receipt notice.

SOLUTION: Do not rely on the projected processing times listed on the USCIS website! File petitions as far in advance as possible or seriously consider premium processing any petition where the artist needs to arrive in less than 2 months from the date of filing.

2. RFEs Asking For What Seems Obvious.  

For example, orchestras have reported receiving RFEs on petitions filed for internationally known conductors (many of whom have been approved for prior O-1 visas) where USCIS asked for further evidence on how a conductor is critical or plays a lead role in an orchestra. USCIS has also been issuing RFEs asking for an explanation of why an Executive Director provides “essential support” to a group on tour or asking for a list of the duties of a Stage Manager or Lighting Designer.

SOLUTION: We have always recommended that, when it comes to preparing visa petitions, never assume that the USCIS examiner has any familiarity with the performing arts. This seems to be the case now more than ever. Always err on the side of over-explaining everything—What does a Concert Master do? Why is a specific award important? Covent Garden is an opera house, not a plant nursery. Etc. USCIS seems to be particularly focused on petitions for P-1S and O-2 support personal. As such, it is no longer sufficient simply to list the names and jobs of support personnel. Provide a brief biography for each person, along with a short, but specific explanation of their duties and experience working with the O-1 artist or P-1 group.

3. RFEs Asking For Employment Contracts For Support Personnel.

In yet a further attempt to thwart O-2 and P-1S petitions, USCIS has been issuing RFEs asking for evidence of who will be employing each support person. For example, if your petition includes engagement letters or contracts from presenters booking the O-1 artist or P-1 group, USCIS also wants to see the employment terms for each O-2 or P-1S support person.

SOLUTION: Provide either a statement from the O-1 artist or P-1 group explaining who will be paying the fees or salaries of each support person or provide a very basic deal memo or term sheet for each O-2 or P-1S support person outlining the fees they will be receiving and who will be paying them.

4. Unsigned Contracts

USCIS has recently been rejecting blank or unsigned contracts. USCIS wants either a signed engagement contract or written summary of the terms of an engagement.

SOLUTION: Do not send USCIS anything with a signature line on it which is not signed, especially contracts. If you have an unsigned contract, either get it signed or don’t send it. Instead, submit a copy of an email confirming the engagement terms, a written summary of the engagement terms, a letter to or from a venue confirming the engagement terms and signed by the sender, or a deal memo listing all the terms, but with no place for anyone to sign anything.

5. Truncated Classification Periods. 

In the past, USCIS has been willing to approve visa petitions to cover additional time before and after a performance to accommodate rehearsals, extra performances, and unanticipated activities. More recently, however, USCIS has been issuing approval notices only for the specific time reflected in the engagement contracts or confirmations. For example, if your petition asks for a classification period of March 1, 2014 through February 28, 2015, but the performance contracts only reflect performances between March 11, 2014 and February 20, 2015, USCIS is issuing the approval notice only for March 11, 2014 through February 20, 2015.

SOLUTION: Make sure that the contracts and written confirmations you supply in support of your classification period reflect the actual dates you need. For example, if the performance is on March 11, 2014, but the artist or group wants to enter on March 6, 2014, make sure that the contract or written confirmation reflects that the artist is required to enter the US on March 6, 2014.

While the bulk of this madness seems to be coming from the Vermont Service Center, there is every reason to believe that the California Service Center will not be far behind. Until this sorts itself out, file early, provide as much supporting documentation and details as you can, and continue to check www.artistsfromabroad.org as well as our own website for further updates.

__________________________________________________________________

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!

 

 

 

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

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!

 

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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.

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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.

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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!

 

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

Oh, Canada!

Thursday, October 31st, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

I represent a performance group from Canada who will be touring the United States. Three of the members are Canadians, but two are not. I have applied for a P-1 visa. Because the group is from Canada, can they enter the US just with the approval notice or do they first have to go to the consulate and get actual visas in their passports?  

There more to Canada than just poutine, health care, and HM The Queen on the currency. Canadians are also the only folks who are not required to have physical visas to enter the US.

Canadian artists must still file visa petitions with USCIS and be approved for either O or P visa classification. (Like artists from the rest of the world, Canadian artists cannot perform in the US as visitors—even for free!). However, once the visa petition has been approved, a Canadian artist does not have to go to a US Consulate, pay a visa application fee, and receive a physical visa in his or her passport. Instead, a Canadian artist can enter the US with only their passport and a copy of their USCIS visa approval notice. (Technically, a Customs and Border Patrol (CBP) officer can verify the approval through the USCIS database and does not need a copy of the approval notice. However, for obvious reasons, do NOT rely on this. Artists should always bring a copy of the actual approval notice, as well as a copy of the visa petition itself, just in case.

This unique privilege only applies to Canadian citizens. It does NOT apply to Canadian permanent residents (aka “Canadian landed immigrants”) or anyone who just happens to be passing through Canada en route to the US.

So, in your case, if the three Canadian members of your group are Canadian citizens, then they can proceed directly to the airport or border-crossing and enter the US with only their passport and their visa approval notice. The other 2 members of your group will need to make an appointment at a US Consulate and go through the visa application and issuance process. Apply early…US Consulates in Canada are notoriously backed up!

_________________________________________________________________

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!

 

 

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

Does The Government Shut Down Also Shut Our Doors?

Thursday, October 3rd, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

I have several visa petitions pending as well as applications for Central Withholding Agreements. What impact will the government shutdown have? Do I need to be worried?

That depends on whether or not the lack of an operational government worries you. Granted, it hasn’t been that particularly operational for quite some time. Whenever my computer becomes non-functional, I find that shutting it down and turning it back on again sometimes helps. Perhaps this will have a similar effect. In the meantime, short of accepting the fact that it may be time to consider putting HM The Queen on our stamps and currency, here’s what we’ve got to work with:

Obtaining a visa involves three government agencies: (1) United States Citizenship and Immigration Services (USCIS), which reviews and (theoretically) approves visa petitions; (2) The United States Department of State which operates the U.S Embassies and Consulates where artists take their petition approvals, are interviewed, and apply for visas; and (3) United States Customs and Border Patrol which monitors all ports of entry and (more often than not) admits artists into the country. Applications for Central Withholding Agreements, on the other hand, are processed by the Internal Revenue Services (IRS).

1.      USCIS:

Because USCIS charges fees for visa petitions, it is not entirely dependent on

Congressional funding. As a result, at least for the immediate future, USCIS will remain open and will continue reviewing visa petitions with the customary unpredictability and quirky efficiency we have all learned to expect. However, visa petition fees do not cover all of USCIS’s operational costs. As a result, if the shutdown continues, you can expect to see increasing delays and slower processing times.

In the category of “every cloud has a silver lining”, a large number of petitions for non-arts related employment visa cannot be processed because they involve other federal agencies, such as the Department of Labor, which are completely closed. As a result, at least in the immediate future, you may actually see speedier processing times for O and P petitions as USCIS examiners find themselves with less petitions to review.

2.      U.S. Department of State (U.S. Consulates and Embassies):

Like visa petitions, visa applications and interviews at U.S. Consulates and Embassies, are “fee-based” and are not entirely dependent on Congressional funding. So the good news, such as it is, is that most U.S. Consulates and Embassies will continue interviewing applicants and processing visas…so long as the buildings remain open. That’s right, while consular services may continue, the longer the shutdown continues, the more likely that that staff support, security and other services will be cut off and the buildings and embassy compounds in which the consulates are located may be forced to close or restrict access.

Another concern is that, even where USCIS has approved a visa petition, citizens from certain countries (and you know who you are) require additional security clearances and background checks before the consulate can issue the visa. As other U.S. agencies are required for such clearances and checks, if these agencies close or shutdown, the visa applications dependent on these clearances cannot be processed.

As each U.S. Consulate maintains its own website, the best advice is to continually visit the website of whichever U.S. consulate you need to determine whether or not that consulate is open and functional. You can link to all consulate from the Department of State’s website: www.state.gov

3.      U.S. Customs and Border Patrol:

As their functions constitute law enforcement, CBP officials are considered “essential personnel.” As result, all borders and ports of entry will remain open and fully operational and there should be no immediate impact on the ability of visa holder to enter the U.S. However, as the shutdown progresses, staffing could may become more limited, resulting in longer lines and grumpier than usual CBP inspectors—especially given that “essential personnel” have the honor of being required to work without the requirement of being paid. Accordingly, you should plan connecting flights accordingly.

One additional note of concern is that the CBP website will not be maintained during the lapse in appropriations. As you may know, since May 1, CBP has no longer been issuing physical I-94 cards to indicate when an individual entered the U.S. and the length of their approved stay. Instead, that information is being entered electronically and, should someone need to verify that they are legally present in the U.S., they can use the CBP website to print out a copy of their “digital” I-94 card. Because approximately 6,000 CBP positions, primarily held by technicians and support staff, are impacted by the shutdown, the website will not be available. You should also expect delays in updating the system once it comes back on-line.

4.      Internal Revenue Service:

It should come as no surprise that the CWA program is considered “non-essential” and, as a result, the program was shut down along with the rest of the government. All processing of applications has stopped and will not resume until the government decides to re-open. At which time, you can expect a delays as the IRS agents attempt to catch up on the backlog. In the interim, engagement fees not covered by a CWA or other applicable withholding exemption, will be subject to 30% withholding.

Obviously, this is an ever changing situation and may have changed already by the time you read this. What has not changed, and is unlikely to change, is that when planning U.S. tours and performances of non-U.S. artists, you should always plan as far in advance as possible and allow as much time as possible. While we will continue to provide updates as they become available, you should also regularly monitor www.artistsfromabroad.org for the latest news.

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For additional information and resources on this and other legal and business issues for the performing arts, visit www.gartslaw.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, Central Withholding Agreements, Law and Disorder: Performing Arts Division, Taxes, Touring, Visas | Comments Closed

Visas for Recording Artists

Wednesday, September 25th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

If a foreign singer (who is not a citizen of a country that is eligible for the visa waiver program) gets a record deal in the USA, what kind of visa would they need to apply for? And if the singer is currently living in a different country with a residency permit, can they apply in that country where he or she is living, or would they need to return to their own country to apply for the visa? Thanks.

Thanks. This is an easy one.

To work in the US, which includes entering the US for the purposes of recording an album (regardless of whether or not the singer is paid), the singer would need to apply for an O-1B visa. An O-1B visa is for individual artists of “extraordinary ability.” To obtain the visa, a US-based petitioner (which could be the record label or an appointed agent) would need to prepare and file a visa petition with United States Citizenship and Immigration Services (USCIS). (Naturally, there are fees and costs to file the petition.)

Once the visa petition is approved, USCIS will issue an “approval notice.” The singer will need that to make an appointment at a US Consulate and schedule a visa interview. He or she will need to complete an on-line application form and pay a visa application fee. However, the singer can go to any US Consulate in the world that is convenient for him or her. He or she does not have to return to their home country or even use the consulate in the country where they are a living. Any consulate in any country with a US flag outside will work. (Just make sure it’s a consulate that issues visas—not all do.) Assuming there are no problems with the background check, and assuming the singer is not from a country the US doesn’t like (which, sadly, is a larger list than you may think), the visa should be issued in 3 or 4 days.

There is a rare exception you should be aware of which may or may not be applicable. An artist is not required to have an artist visa to enter the US for the sole purpose of using a recording studio to record an album that will not be sold or distributed in the US, and provided there will be no public performances or concerts. If this applies, an artist only needs to have a visitor visa (unless they are citizen of a visa waiver country, in which case, they will only need their passport to enter as a visitor for up to 90-days.)

Remember, everything you could possibly want to know about visa and tax issues for foreign artists wishing to perform in the US, including things you didn’t even know you needed to know, can be found on: www.artistsfromabroad.org

__________________________________________________________________

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

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!

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

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