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:
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)
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For additional information and resources on this and other legal, project management, and business issues for the performing arts, visit ggartslaw.com
To ask your own question, write to:
lawanddisorder@musicalamerica.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.
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THE OFFICIAL DISCLAIMER:
THIS IS NOT LEGAL ADVICE!
The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
