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WHY ARE ARTISTS BEING DENIED ENTRY INTO THE US? HOW DID IT COME TO THIS AND WHO DO WE BLAME?

Friday, March 17th, 2017

By Brian Taylor Goldstein, Esq.   

By now, you should all be aware that the incidents of artists and performers from a wide range of nationalities arriving in the United States as visitors (either on visitor visas (B-1/B-2) or through the visa waiver/ESTA program) and being refused entry are growing at an alarming rate. These artists are being pulled aside, subjected to hours of questioning, and, in many instances, being handcuffed and held overnight until return flights become available…all without the benefit of being able to contact anyone or seek counsel.

We should all be angry and outraged. However, the value of general cathartic explosions notwithstanding, it is important to know whom to blame and where to focus all of the outrage and anger.

First and foremost, unlike some artists and others have asserted, no laws or regulations have been changed with regard to the visa waiver/ESTA program. To the contrary, ever since the United States immigration laws were overhauled in the 1990s, it has always been the case that artists are not permitted to perform in the US either on visitor visas or through the visa waiver/ESTA program regardless of whether or not artists are paid or whether or not tickets are sold. In order to perform, artists must have an appropriate artist visa—which, in most cases, is going to be either an O visa or a P visa.

Very often, an artist, manager, or presenter will contact our office in situations where there has been a list minute engagement opportunity and there is no time for an artist to obtain an O or P visa. They will almost always ask whether the artist can perform without an O visa or P visa if the artist does not get paid—or, worse, presume that this is the case. No! Payment—or lack thereof—is not the deciding factor. The deciding factor is whether or not there is an audience.

One of the few exceptions to this counter-intuitive restriction is that an artist may enter the US either on a visitor visa or through visa waiver/ESTA provided the artist’s sole purpose is to audition or perform a showcase for the sole purpose of obtaining future work and engagements and provided ALL of the following requirements are met:

(1) The artist is not being paid;

(2) The performance is closed to the public; AND

(3) The performance is restricted to promoters, managers, presenters, bookers or other industry professionals who book or engage artists.

Merely calling a performance a “showcase” does not make it a showcase. Performing, even for free, in the hopes of obtaining future engagements is not sufficient. Rather, the narrow crack in the otherwise strict prohibition against artists performing without an O visa or P visa was created purely to allow artists to attend booking conferences (such as Arts Midwest, PAE, or APAP) or a traditional audition where the artist performs before a few gruff and aloof producers or directors. If at any time the general public is allowed to attend (even if no tickets are sold), then it is not considered an “audition” or “showcase” and the exception does not apply.  Accordingly, promotional and publicity tours do not qualify either. Similarly, if an artist is entering to perform as part of training program and the performance is open to the public, the exception also does not apply.

As to why such onerous restrictions were ever enacted in the first place, the “official” argument is that it was to protect the United States labor market. True as this may be, it reflects an offensive disregard of the fact that artists are unique and all performances, good or bad, are distinctive. Unlike non-US manufacturing labor who arguably may have similar training and experience as their US counterparts, non-US artists cannot merely be substituted or swapped for a US alternative who just happen to have similar technical abilities. If you have seen one artist, you most definitely have not seen them all. However, without in the least defending these regulations, it is worth bearing in mind that the United States has no Ministry of Culture to advocate policy on behalf of arts and artists. Rather, the arts must rely upon a loose coalition of independently funded arts advocates and institutions whose impassionate pleas are shouted from the wastelands of Whoville. While we also have a National Endowment for the Arts titularly funded by the government, it is purely a granting institution which admirably struggles to disburse crumbs and scraps to the artists crowded at the children’s table—and which, as of today, President Trump has proposed to eliminate entirely.

Nevertheless, for many years festivals, presenters, venues, schools, and others have expanded and relied upon the narrow “audition” or “showcase” exception by providing artists with a letter asserting that an artist is entering to perform an “audition” or “showcase”, is not being paid, and that the audience is restricted only to industry professionals. With only the rarest of exceptions, this usually worked. To be fair, it probably shouldn’t have worked as often as it did, but no harm no foul.

Then came President Trump.

Without having to amend or change any existing laws, the recent Executive Orders have imposed immediate “heightened scrutiny” and “extreme vetting” at all levels of the immigration process by mandating strict enforcement of laws and regulations already in place. (Sadly, these particular directives are not amongst those subject to the recent judicial restraining orders and stays.) As a result, we have entered a new era whereby all immigration officers, examiners, and other officials have now been instructed to “believe none” and “suspect all.”

For those of us in the arts and entertainment field, this means that artists who have hitherto had little trouble entering and performing either on a visitor visas or through visa waiver/ESTA—even in those instances where they were never supposed to do so—are now being stopped, questioned, and turned away. Just as bad, artists such as authors, painters, and designers who are legitimately entering the United States as visitors to attend conferences or to attend performances or exhibitions of works they created entirely outside of the US are now at a greater risk of being turned away merely by admitting that they are artists and do not have an artist visas.

As I was once taught by a senior attorney whom, in retrospect, should never really have been mentoring anyone in the first place, solving any problem first requires the assessment of blame. In this case, as frustrating as it is, it is not entirely appropriate to blame immigration or consular officers who, however aggressively, are being instructed to enforce laws that have always been there to enforce. Nor is it reasonable to presume a vast conspiracy focused on artists from specific countries. Rather, a more reasonable assessment of culpability would be as follows:

(1) The immigration laws and regulations that have always been unreasonable and unduly burdensome for decades with regard to artists, but which have gone unchallenged and mostly unnoticed because they were unenforced without any degree of consistency.

(2) The venues, record labels, managers, and others who offhandedly give artists bad advice with the air of authority, but without the burden of accuracy.

(3) The artists who are all too willing to accept without challenge the venues, record labels, and managers so long as they are being told what they want to hear.

(4) The United States government which, as opposed to targeting artists with the explicit intention of thwarting efforts to promote tolerance and understanding through artistic exchange, is oblivious that the arts exist in the first place, much less serve any purpose.

(5) The White House for boastfully implementing a new paradigm whereby all are presumed guilty until proven innocent.

Aside from continuing to shout, scream, and protest through every available platform, what’s to be done?

(1) Whether you believe an artist requires a visa or not, if it is at all possible for an artist to obtain a visa, do so.

  • Having an O or P visa does not guaranty entry as both consulate officers and immigration offers have the unrestricted authority to deny visas or deny entry at any time for any reason. However, having an actual O or P visa in an artist’s passport will go a long way towards ameliorating the immediate presumption of an immigration officer that an artist arriving as a visitor is doing purely to threaten our way of life.

(2) If an artist legitimately meets the narrow “audition” or “showcase” exception, then the artist needs to be properly briefed and prepared as to what to expect and how best to answer invasive and probing questions in an atmosphere of stress and intimidation

  • This means that, in addition to providing a letter from the festival, presenter, or venue, the artist should also be armed with documentation about the booking conference or audition itself—such as a list of attendees, information about the production or entity for whom the artist is auditioning, etc.
  • Make sure there are no press releases, announcements, or other information on either the artist’s or venue’s website (or anywhere on the internet for that matter) suggesting or announcing that that artist is “touring” or “appearing” in the United States, much less providing a schedule of US engagements—particularly since, legally, there can be no US engagements!
  • The artist should have return tickets already booked to establish that the artist will only be staying in the United States for the time necessary to arrive, audition, and leave.

(3) Review an artist’s prior travel to the United States to make sure they have not previously engaged in any un-authorized performances and, if so, be prepared to address this.

(4) Make sure an artist has at least a few materials (such as reviews or CDs) establishing that the artist is, in fact, an artist.

(5) Whether you’re dealing with immigration, royalties, contracts, or licensing, Artists need to be at the forefront of their own business. Don’t presume the people advising you are knowledgeable or even have your best interest in mind. At the end of the day, if you have to cancel a performance or, worse, get deported, the festival, venue, or manager will move on. Its YOUR career on the line!

(6) Lastly, if an artist does get stopped, pulled aside, and faces the possibility of a refused admission, the artist should voluntarily request to withdraw his or her request to enter the United States and voluntarily offer to return home. Voluntarily withdrawing a request to enter does not count as a “denied entry” and will not blemish an artist’s immigration record for future travel. On the other hand, insisting on entry and then being “denied entry” and forcibly returned can have serious implications on future travel.

We are all on a roller coaster that shows no signs of slowing down. As we continue to hold on to the bar, we also continue to recommend that everyone consistently check with reliable sources (ie: not chat rooms or random google searches) for updates and developments before making any travel decisions, applying for visas, booking foreign artists, or entering to perform on visitor visas or through the visa waiver/ESTA program. We recommend:

1) www.artistsfromabroad.org

2) The USCIS website: www.uscis.gov

3) The US Department of State website: www.travel.state.gov

4) The US Customs and Border Patrol website: www.cbp.gov

5) The American Immigration Lawyers Association (www.aila.org)  

And we will continue to update on our blogs, social media, and newsletters as changes occur.

__________________________________________________________________

For additional information and resources on this and other legal, project management, and business issues for the performing arts, as well as to sign up for our newsletters and follow us on social media, visit ggartslaw.com

To ask your own question, write to

lawanddisorder@musicalamerica.com

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. Questions will be answered ONLY in future blogs. 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 Artist Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

What In The World Is Going On With Artist Visas as of March 7, 2017?

Saturday, March 11th, 2017

By Brian Taylor Goldstein, Esq.

Here we go again…

On March 6, 2017, President Trump issued a new Executive Order regarding US immigration to replace the previous Executive Order of January 27, 2017. The new Order takes effect on March 16, 2017 and expressly revokes the January 27, 2017 Order (which had been subject to a court issued temporary restraining order anyway.) The new Order…

  • Bans immigrant and nonimmigrant entries for citizens of six designated countries – Syria, Iran, Libya, Somalia, Sudan, and Yemen – for at least 90 days beginning on March 16, 2017. The new Order no longer includes Iraqi nationals in the 90-day travel ban.
  • Exempts certain categories of people, including lawful permanent residents (US “Green Card” holders), current US visa holders, and dual nationals traveling on a passport from a country that is not one of the six designated countries.
  • Confirms that no visa issued before March 16, 2017 will be revoked as a result of the Order, and that any individual with a revoked or cancelled visa as a result of the prior, January 27, 2017 Order is entitled to a travel document for travel and entry to the US. After March 16, 2017, nationals from the list of six countries will no longer receive visas, even if they have been approved for visas by USCIS.
  • Allows for exceptions and case-by-case waivers.
  • Provides that after 90 days, the citizens of these countries can be permanently banned.
  • Provides that the Secretary of State, Attorney General or Secretary of the Department of Homeland Security can at any time recommend that additional countries be added to the list or taken off of the list.
  • Immediately suspends the Visa Interview Waiver Program (VIWP) and effectively mandates in-person interviews for all nonimmigrant visa applicants.
  • Mandates heightened vetting and screening procedures at all levels of the immigration process, particularly immigrants and non-immigrants “who seek to enter the United States on a fraudulent basis.”

While there are other portions of the new Order that impact other areas of immigration, our main focus is on how all of this applies to artists and the Performing Arts. In the case of the new Executive Order, its actually the last two provisions which will have the most widespread impact on foreign artists. Here’s what you need to know:

HEIGHTENED VETTING AND SCREENING PROCEDURES AT ALL LEVELS OF THE IMMIGRATION PROCESS:   

It means that when seeking an O or P visa, regardless of the nationality of an artist, artists  may encounter additional scrutiny and delays at each stage of the process—from  petitioning USCIS for visa approval, to consulates issuing visas, to Immigration Officer’s admitting artists at the border. This applies to artists from any country in the world.

Given that the new Order specifically requires heightened vetting and screening of those “who seek to enter the United States on a fraudulent basis”, there is going to be even  more scrutiny and less forgiveness than ever before with regard to artists attempting to enter the US on visitor visas (B-1/B-2) or through the Visa Waiver Program (“ESTA”). We are already receiving reports of artists being held and detained for hours  upon entering the US to determine whether or not they are performing. Even artists  entering as visitors for the purpose of attending a conference or “performing a showcase” are being pulled aside and, in many cases, being refused entry. Artists entering with B- 1/B-2 visas or through the Visa Waiver Program (ESTA) are being pulled aside the  moment they say that they are “entertainers”, “performers”, or “artists.”

When an individual is held and detained, they are subject to interrogation as well as  demands to inspect their cell phones, luggage, and personal items. Any refusals can be groups for a refused entry, which will then stay on an artist’s record impeding future  visas and travel.

Everyone needs to understand and accept that: Artists cannot perform on visitor visas  (B-1/B-2) or through the Visa Waiver Program (“ESTA”) regardless of whether or   not they are being paid and regarding of whether or not tickets are sold. Except in   the most narrowly defined circumstances, US immigration law has always defined  “work” as it pertains to artists, as any kind of performance. Artists denied entry on the basis of fraud, will have a denied entry on their record, impeding future visas and travel.

Some presenters and venues in the US—particularly festivals and academic institutions  continue to advise artists that O and P visas are not required if an artist is not being paid  and/or if the performance is part of a training program. This is incorrect and always has been.

In addition, while artists with O and P visas, on the average, seem to be experiencing less trouble, even O and P visa holders, as well as green card holders, are being held and  detained in instances where an Immigration Officer believes they are citizens of or traveling from ANY country in the world whom they believe could pose a threat to the  US.

In short (I know, too late), an Immigration Officer has the unfettered authority and  discretion to deny entry to any artist from any nationality for any reason. To what   extent this authority will be exercised remains to be seen.

THE SUSPENSION OF THE VISA INTERVIEW WAIVER PROGRAM (VIWP) 

While it has always been subject to the discretion of each consulate, the VIWP allowed consular officers to waive the interview requirement for applicants seeking to renew nonimmigrant O and P visas within 12 months of expiration of the initial visa in the same classification. The VIWP has been used to waive the interview requirement only for travelers who have already been vetted and determined to be a low security risk and who have a demonstrated track record of stable employment and stable travel.

By suspending the program, all artists will be required to have a personal interview in order to receive a new visa regardless of when their last O or P visa was issued or whether or not they were previously allowed to receive a visa under the VIWP.

Until additional consular staff is hired, Order will place enormous burdens on U.S. consulates and embassies – particularly high-volume consulates – by increasing already extended interview wait times and processing times, wasting limited resources, and potentially decreasing the quality of consular interviews.

HOW DOES THE NEW ORDER IMPACT ARTISTS FROM THE 6 BANNED COUNTRIES (IRAN, LIBYA, SOMALIA, SUDAN, SYRIA, AND YEMEN?  

  • If the artist is a citizen of one of those countries, but already has a US visa or Green Card, then “officially” the ban does not apply to them. However, they should still expect “heightened vetting and screening procedures.” Also, once their visas expire, they will need to leave the US and will not be eligible for new ones.
  • If an artist from one of these countries has not yet been issued a visa by March 16, 2017, they are not going to get one. This includes students.
  • If an artist who is citizen of one of these countries is also a citizen of another country not on the list (for example, a citizen of both Iran and Canada), they WILL be allowed to receive visas and travel to the US PROVIDED the visa is stamped into the passport from the non-banned country and they only travel on the passport from the non-banned country. However, they should still expect “heightened vetting and screening procedures.”
  • The Order does not apply to artists who may have been born in one of the banned countries, but who are no longer citizens. However, they should still expect “heightened vetting and screening procedures.”
  • The Order does not apply to artists who may have been merely visited or performed in one of the banned countries. However, they should still expect “heightened vetting and screening procedures.”

WHAT DO WE RECOMMEND?

  •  All artists, regardless of nationality, she travel to the US with copies of their I-797 visa approval notices and maintain such copies, along with copies of their visas, on their person at all times while in the US. In addition to US Immigration Customs and Enforcement (ICE), state and local police can also demand proof of valid immigration status at any time while an artist is in the US.
  • Artists from all countries should not attempt to enter the US on visitor visas (B-1/B-2) or through the Visa Waiver Program (“ESTA”) except in the most narrow of circumstances. For example, performing at a booking conference (Arts Midwest, PAE, APAP, etc.) where only registered attendees are permitted to attend or performing at a competition or non-public audition are still permitted in visitor status. However, whether or not an Immigration Officer will continue to understand and accept these exceptions remains to be seen. In such instances, make sure such an artist is properly advised ahead of time and travels with extensive supporting evidence.
  • Plan well in advance when submitted visa petitions to USCIS and allow for extra time for US consulates to issue visas.
  • Review an artist’s prior travel to the US to make sure they have not engaged in any un-authorized performances and, if so, plan accordingly.
  • Artists should bring snacks when traveling into the US in case they are held or detained as there is no food available. We recommend beef jerky. But not hummus.
  • Plan and prepare, not panic.

As our office continues to address issues and implications on the front lines, we are relying upon the American Immigration Lawyers Association (AILA), The League of American Orchestras, the US Performing Arts Task Force, and other vital organizations who continue to monitor and report on the situation at all levels. AILA does not believe the new Order will withstand judicial scrutiny since the targeted countries are majority Muslim and the Order fails to provide evidence that nationals of the six countries pose a threat to national security.

As the rules can change at any time, it is critical that you consistently check with reliable sources (ie: not chat rooms or random google searches) for updates and developments before making any travel decisions, applying for visas, or booking foreign artists. We recommend:

1) www.artistsfromabroad.org

2) The USCIS website: www.uscis.gov

3) The US Department of State website: www.travel.state.gov

4) The US Customs and Border Patrol website: www.cbp.gov

5) The American Immigration Lawyers Association (www.aila.org)  

___________________________________________________________________

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.com

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. Questions will be answered ONLY in future blogs. 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 Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

WHAT IN THE WORLD IS GOING ON?

Sunday, January 29th, 2017
By Brian Taylor Goldstein, Esq.

Except for those of you who may have been exploring other dimensions for the past few days, almost everyone else on the planet has been following the flurry of recent developments in the US as our country falls into the slipstream of chaos. We felt it was important to clarify exactly what is going on (at least as of Sunday, January 29, 2017) and how it impacts the arts.

On January 27, 2017, Dictator-in-Chief Trump signed an Executive Order that, among other provisions, immediately “suspends” the immigrant (“green card”) and nonimmigrant (Os, Ps, Fs, Hs, etc.) entry of citizens from the following countries for 90 days from January 27, 2017: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Artists from these countries will not be able to enter the US, including those artists who already possess an I-797 Approval Notice or even who have already been issued an actual visa. As of January 29, 2017, those holding green cards may, in theory, re-enter the U.S., but they, too, should expect additional scrutiny, delays, and possible refusals.

It should be noted that the travel ban will not automatically be lifted after the 90 days.

Also, this order not only applies to anyone who holds a passport from any of the 7 designated countries, but also to dual citizens who hold passports from a designated country, as well as a non-designated country. So, for example, if an artist were to hold BOTH an EU passport as well as an Iraqi passport, that artist would be subject to the bar. “Theoretically, dual nationals holding US citizenship remain able to re-enter the U.S., but they should expect additional scrutiny and delays as well.

It is unclear whether or not the travel ban applies to people who are former citizens of the 7 countries or who may have merely traveled to one of these countries. However, they should expect additional scrutiny and delays as well.

Additional changes to the visa rules, regulations, and restrictions have been threatened in the upcoming weeks. However, the expectation is that most of these will apply to H-1B visas (employees with specialized skills and academic degrees), which rarely, if ever, apply to artists and F visas (students), which will apply to artists attending school and training programs in the US. We would also not be surprised if Dictator Trump eventually slams the door again on Cubans, as well.

For now, aside from those artists impacted directly and immediately, everyone else should take a breath and keep the following in mind:

1) Do not panic!

We’re all doing that for you!

 2) Stop relying on ESTA

There is going to be even more scrutiny and less forgiveness that ever before with regard to artists attempting to enter the US on visitor visas (B-1/B-2) and/or ESTA status. We’ve have said this 1000 times, but we keep getting questions about this: Artists cannot perform on visitor visas and/or on ESTA status. Not for free. Not for education. Not for schools. Not for training. Not if no tickets are sold. Not no way! Not no how! If any US manager, agent, presenter, venue, or academic institutions tells you otherwise—RUN AWAY!

 3) Plan ahead. This has always been important, but now it has become critical. In other words, don’t schedule any quick connecting flights or wait until the last minute to file visa petitions and schedule consulate interviews.

Lastly, because the situation can change at any time, it is critical that you consistently check with reliable sources for updates and developments before making any travel decisions, applying for visas, or booking foreign artists. We strongly recommend:

1) www.artistsfromabroad.org

2) The USCIS website: www.uscis.gov

3) The US Department of State website: www.travel.state.gov

4) Licensed immigration attorneys

_________________________________________________________________

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.com

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. Questions will be answered ONLY in future blogs. 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 Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

When It Comes To Visas: Plan For The Worst And Hope For The Best

Thursday, August 27th, 2015

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

We got our P visa for a group returned because it included the tour manager. USCIS is saying we need to file a separate petition and get a separate union letter for him. But USCIS has approved prior P petitions with everyone on the same petition. Is this something new? This would mean another petition and another union fee. Also, we have heard that USCIS is taking 8 weeks to review petitions. Is this true? The group cannot afford to premium processing fees for two petitions.

It’s almost impossible to choose amongst the many frustrating aspects of the U.S. immigration laws pertaining to visas for artists and performers. The high fees for poor service? Having to provide documentation that The New York Times is a “major publication”? Trying to explain to a USCIS examiner that an orchestral conductor is, in fact, a “lead role”? The regulatory presumption that the U.S. Government (which has never significantly supported any artistic endeavor ever since Abraham Lincoln died in a theater) is in a better position that an artistic director to determine who is and who is not a “distinguished artist”?  However, it’s the unpredictability of the entire process that most people fail to appreciate with sufficient magnitude.

It has always been the rule that a petition for a P-1 visa can only include the actual performers in the group. Any support staff—tour managers, general directors, production managers, stage crew, administrative personnel, and even artistic directors and choreographers (unless they will also be performing)—must be listed on a separate petition for a P-1S visa. Unless someone is actually performing in front of the audience, do not list them as part of a P-1 petition.

The frustration in your case is that the USCIS apparently approved your prior P-1 visa petitions where you included the group’s tour manager on the same petition as the performers. While this saved you both time and money in the past, it was also a mistake on the part of the USCIS. It’s not uncommon for USCIS to treat similar petitions or even prior petitions from the same artist or group inconsistently, approving some and rejecting others. The problem, in addition to poorly trained, underpaid, and overworked USCIS examiners, is that unlike other legal proceedings—and, yes, filing a visa petition constitutes a legal proceeding just like filing a lawsuit—USCIS is not bound by the precedence of its own prior decisions, actions, or mistakes. In other words, just because USCIS overlooked an evidentiary requirement or interpreted an immigration regulation a certain way in the past does not mean they are under any obligation to do so in the future. Even if they approved a visa for an artist or group in the past does not mean they have to do so again. Under U.S. immigration law, USCIS is always free to apply the rules as strictly as they wish, ask for additional documentation, or even determine that a prior visa petition should not have been approved.

The “take away” from this is that you should never assume that simply doing everything you did last time will result in the same outcome. Always prepare every visa petition for every artist and every group as if it was the artist or group’s first petition, paying particular attention to understanding and satisfying all of the regulations and evidentiary requirements regardless of how absurd or inconvenient. Take no shortcuts. Overkill. Overkill. Overkill. This includes making sure that the immigration rules and procedures have not changed since you last prepared and filed a visa petition. USCIS frequently changes filing fees and updates its forms with little notice unless you go looking for it.

For example, earlier this year, USCIS updated the Form I-129 that is required for an O or P visa petition. Guess what? THEY JUST UPDATED IT AGAIN!!!  That’s right, effective August 13, 2015, there is an even newer new I-129 form. At some yet to be announced date, any petitions using any version prior to August 13, 2015 will be rejected. So you might as well start using the new form now. If you prepared a visa petition last year and tried to use the same form, it would be returned.

Always begin a visa petition by getting the newest version of the USCIS forms directly from the USCIS website: www.USCIS.gov  DO NOT USE FORMS FROM ANY OTHER SOURCE AS THEY MAY BE OUTDATED. www.USCIS.gov will also be your best source for any new filing fees or other updates.

For instance, were you aware that effective August 30, 2015, you will no longer be able to upgrade pending petitions to premium processing on-line? Now you are. After August 30, 2015, all premium processing forms will require physical paper I-907 forms to be sent physically to USCIS.

As for the processing times: Yes, USCIS (particularly the Vermont Service Center) is experiencing a significant backlog of 8 weeks or more for standard processing. This could change again over the next few months, but right now it is taking an outrageous amount of time. Unlike forms, never rely on the processing times posted by the USCIS Service Center themselves. They are notoriously inaccurate and misleading. Always assume that unless you have paid the additional USCIS Premium Processing Fee, a petition will take a minimum of 4 – 6 weeks and plan accordingly.

In addition to www.USCIS.gov, your best source of current updates and information should be www.artistsfromabroad.org and other official sources of vetted information. An artist’s or group’s performance should be too important to trust to gossip or anecdotal surveys.

In your situation, there’s no way to avoid having to file a separate P-1S petition for the group’s Tour Manager. That’s the law and always has been. However, if your group cannot afford premium processing and they will be performing for a non-profit or educational institution, then contacting a U.S. Senator or member of Congress can “sometimes” be helpful under the right conditions, including the particular political leanings of the Senator or member of Congress. If the stars and moons align, the Senator or member of Congress can contact USCIS and request an emergency expedite on your behalf.

________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook 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.

__________________________________________________________________

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 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

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

A Visa Substitution Requires an Artist to Substitute

Wednesday, April 17th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

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

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

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

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

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

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

________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

Can A Visitor Record An Album?

Wednesday, October 3rd, 2012

By Brian Taylor Goldstein

So glad I found your page on the internet, so far it’s been the most helpful out of all my Google searches! I have just a couple of questions. We are from Australia and I have a 14 year old son who has signed a recording contract in the US. Currently we are traveling back and forward on the Visa Waiver Program. I understand he is not aloud to perform until he has an “O” visa. However, is he aloud to record music in his producer’s studio for the album and take label meetings in the hope of placing a major recording contract? When I say meeting, its meeting with music labels for an interview/audition and you normally have to sing a song so that they can hear you and see if they like you in their office.

First of all, congratulations on the recording contract. Those are NOT easy to come by these days.

The visa waiver program allows citizens of certain countries (with Australia being among them) to enter the U.S. for up to 90 days as a “visitor” without first having to obtain an actual B1/B2 (visitor) visa from a U.S. Consulate. Citizens of visa waiver countries only need to have a valid passport to enter the U.S. as a visitor. When an individual enters on the visa waiver program, he or she is subject to all of the same rules and restrictions as if they had an actual visitor visa.

A “visitor” to the U.S. is allowed to do all of the normal visitor activities (sightseeing, shopping, visiting friends, etc.) as well as have business meetings. Visitors cannot work or look for work. Artists who enter as visitors are allowed to attend competitions and auditions (which, as we all know, is a heck of an amount of hard work!), as well as have meetings with producers, agents, and other arts professionals. However, with limited exceptions, they are not permitted to perform in front of an audience–even if they perform for free and/or no tickets are sold! An artist must have an appropriate artist visa (either an O or a P) in order to perform. When it comes to recordings, there’s a limited exception: A recording artist is permitted to come to the U.S. as a visitor to use recording facilities in the U.S., for recording purposes only, provided the recording will be distributed and sold only outside the U.S., and no public performances will be given. Otherwise, when recording artists enter the U.S. to record albums, they are required to obtain an appropriate artist visa.

In your situation, it is perfectly fine for you son to enter the U.S. on the visa waiver program to meet with his agents, producers, and representatives of his label. He can even have interviews and auditions. However, he cannot record music in his producer’s studio for purposes of a publicly released and distributed album unless it’s for an album that will be sold and released outside of the U.S.

You’re fortunate in that Musical America just released a fantastic downloadable report on the complex issue of obtaining U.S. visas for artists, full of helpful tips and explanations. You’ll also want to check out artistsfromabroad.org which has become the definitive resource tool on the issue and which contains an exhaustive array of information and materials.

_______________________________________________________________

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, Law and Disorder: Performing Arts Division, Recordings, Visas | Comments Closed

When You’re Right, You’re Right!

Wednesday, September 19th, 2012

By Brian Taylor Goldstein

I wonder if you would mind giving me some advice on a visa situation with one of my artists. To summarise, I represent a British artist who was commissioned to write a 7 minute piece for a university in the United States which will be premiered in 2013. The artist will be traveling to the United States around the premiere for various events, including attending concerts and also one or two workshops led by the artist. Primarily, the new piece will also be conducted by the artist himself. In the past, this artist has always held an O-1 visa to work in the United States. However, the university is insisting that, because it is a university, the artist only needs a visitor visa and they are refusing to obtain an O-1 visa for him. The university is not only paying the artist for the commission (which has already been settled through his publishers) but for his visit and performance as a conductor. Therefore, I should think we need a visa and that it’s not really possible for him to travel on the visa waiver scheme – is that correct? If so, am I right in thinking that he really should get an o-1 visa as he always has before?

Because so many legal questions involve the application of broad legal concepts to issues of specificity and nuance, its customary to qualify certain answers by saying “it depends.” That is not the case here. Based on the details you have provided, you have made this extremely easy for me: you are correct. The university is wrong. Plain and simple.

Yes, he needs an O-1 visa. No, he cannot enter and perform on the visa waiver scheme. The visa waiver program allows citizens of certain countries (including the UK) to enter the US as visitors solely using their passports and without the need of obtaining an actual visitor visa. However, they are must abide by the same rules and restrictions applicable to all visitors—namely, no work. For artists, work is not defined by payment. ANY performance of any kind or nature, even if no tickets are sold and the artist receives no fee, is, nonetheless, defined as “work” While there are, indeed, certain exceptions, they are very narrow and limited and, in this case, are inapplicable. I suspect the university is relying on a narrow exception that permits individuals to enter the US as visitors in order to give a lecture or demonstration at an educational institution and receive travel reimbursement and an honorarium. However, that is not the case here. Your artist has clearly been “hired” to conduct. The fact that he is conducting an orchestra at a university does not qualify for a visa exception any more than the fact that music is being performed at a university exempts the need for licensing it (though many erroneously believe this to be the case!). The fact that the university may have convinced other artists to perform for them without the proper visa just means these artists did not get caught. Your artist may not be so lucky.

I would direct the university to www.artistsfromabroad.org. Also, Musical America is about to unveil a special visa issue which will be jammed packed full of insights and tips on bringing foreign artists into the US. Stay tuned!

__________________________________________________________________

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, Visas | Comments Closed

Do Competitions Need To Withhold Taxes On An Artist’s Prize Money?

Wednesday, June 6th, 2012

By Robyn Guilliams

We hold a piano competition where artists, some from abroad, pay their own way to come here to compete.  If they win any prize money, do we need to withhold taxes?

For artists who are nonresidents of the U.S., I’m afraid you are required to withhold taxes! The general rule is that any payment of “U.S. income” made to a nonresident of the U.S. is subject to the 30% withholding requirement. In effect, 30% of the gross income paid to the artist must be withheld by the payer and deposited with the U.S. Treasury.  This deposit will be credited toward any taxes the artist may owe at the end of the year.

Depending on the artist’s country of residence, however, there may be an exception to the withholding requirement.  The U.S. has entered into tax treaties with many countries (68 at last count.)  The terms of each treaty control where a particular person’s income is taxed when the person resides in one country, but the income has a connection to another country (the treaties prevent the person from being taxed twice, in two different countries, on the same income.)

Whether or not an exemption from tax in the U.S. exists is very fact-specific.  Obviously, the nonresident artist must reside in a country with which the U.S. has entered into a tax treaty.  But (just to keep things interesting), the terms of each treaty are different, so the treaty in question must be reviewed to determine if there is a provision that exempts his type of income from U.S. tax, and whether that exemption can be claimed at the withholding stage!

A more detailed explanation of how the tax treaties work is available at the Artists from Abroad website:

http://www.artistsfromabroad.org/tax-requirements/exceptions-to-nra-withholding-requirement/tax-treaties/

You may also want to check out the IRS’s Publication 901, “U.S. Tax Treaties”, (http://www.irs.gov/pub/irs-pdf/p901.pdf), which provides a summary of each treaty currently in force, as well as a few helpful charts to determine what types of income are exempt under each treaty (but be sure to read the footnotes carefully!)

_________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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Posted in Arts Management, Law and Disorder: Performing Arts Division, Taxes | Comments Closed

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