Resources

VISITING NON-RESIDENT ARTISTS—A DILEMMA by Ronny Schiff

We have an “oy vey” situation when it comes to bringing in musical artists from foreign countries into the United States. In the current atmosphere, not only is immigration a challenge (wait—aren’t all of us the descendants of immigrants?), but the situation of bringing in non-citizen artists to tour and perform requires more red tape than Santa’s workshop uses every season. And, the scenarios (read “rules & regulations”) often border on the absurd.

Background…

This is the range of nonimmigrant U.S. visa options that are available to foreign national artists and entertainers who want to temporarily come to the U.S. to perform or exhibit their work in short-term or long-term projects:

·      O1 Visa • Internationally Renowned Artists and Entertainers, who possess extraordinary ability, https://www.uscis.gov/working-united-states/temporary-workers/o-1-visa-individuals-extraordinary-ability-or-achievement

·      P1 Visa • Internationally recognized entertainment groups and their members,

·      P2 Visa • Artists and Entertainers, coming individually or as part of a group, to perform under a reciprocal exchange program.

·      P3 Visa • Artists and Entertainers, coming individually or as part of a group, under a program that is culturally unique.

·      B1 Visa • Professional Artists and Entertainers coming to participate in certain cultural programs and competitions, in limited circumstances.

“The O and P visas were established by Congress with the understanding that the introduction into this country of talent from all over the world brings needed and desired diversity to our artistic and cultural landscape. We should adjudicate the petitions with that intention and spirit in mind.” Alejandro Mayorkas, head of the U.S. Citizenship and Immigration Services until 2016.

Here’s what venues, record companies, festivals and artists have to grapple with…

The U.S. has raised the price of the visa application for performing artists visiting the country.

The rate hike for the Petition for a Nonimmigrant Worker, which is required for all artists, musicians, athletes, DJs, those with extraordinary abilities in the sciences or business, and others traveling to the U.S. for work, comes into effect on December 23, 2017, jumping from $325 per person to $460—a 42% increase.

Yes, there is the need to document and tax non-citizens who are working in the U.S. However, the process itself is often time consuming—especially in relation to other countries—and expensive, posing a disadvantageous financial burden to the point that it stifles the visiting artists and venues where such artists perform, and makes it difficult for emerging talent to break into the U.S. market. Thus, depriving us in the U.S. of that “desired diversity to our artistic and cultural landscape.”

Implementation of additional heightened screening and vetting protocols and procedures for issuing visas.

With his second executive order on immigration, President Trump issued a directive stating: “…immediate implementation of additional heightened screening and vetting protocols and procedures for issuing visas.” This is a subjective process that international artists must maneuver through in order to perform in the U.S.

Time-consuming delays and additional costs due to unexpected visa complications often pose unpredictable bottlenecks, forcing last-minute cancellations or postponement of events. As a consequence, huge financial burdens are shifted to venues, touring artists, or festivals because of the less-than-stellar effectiveness of the visa office. Think about the resources that go into planning a tour or concert and the promotion involved. When a show has to be cancelled there are losses of operational costs, forfeited booking fees, legal fees, flights cancelled, wages lost, and refunds to patrons. Then there is the loss of face and prestige for the venues for disappointing the fans. We’re a global society, we owe it to the artists and their fans to introduce them to U.S. audiences, which many of these regulations are making so difficult and discouraging to schedule their events.

The online music magazine, Resident Advisor writes: “So, while the upfront money is certainly part of the problem, the unpredictability and difficulty of the process is perhaps an equal or greater obstacle for all parties involved.”

It appears that the State Department is denying more artist visas after the President’s directive on vetting visa applications…

One news source reported that in “2016, the U.S. issued more than 63,866 O and P visas. In March and April of this year, the only months the State Department has released data for, the U.S issued only 697 of those visas.”

Case in point: In a report from ArtsEmerson, “programmers at the Boston Early Music Festival (BEMF), a Grammy-winning event that caters to Renaissance and Baroque music enthusiasts, were surprised and dismayed in May 2017, when, for the first time, U.S. immigration services denied four of the 26 visa applications BEMF applied for. The visas were for the four young women of the German group, Boreas Quartett Bremen, who play handmade recorders, and had to cancel their performance in Boston. The federal authorities denied Boreas Quartett entry, saying the group wasn’t renowned enough, despite the quartet’s favorable reviews and performance with Han Tol, a Dutch director and one of the biggest names in the Early Music world. The festival’s visa specialist noted that “the Boreas Quartett is definitely one of the rising stars in the field…our audience has really missed out on a unique and beautiful performance”

The L.A. Times noted that “The Skirball Cultural Center in Los Angeles had to cancel scheduled performances last year of an Argentinian music group because California immigration officials challenged whether its fusion of Jewish klezmer music and tango met the requirement to be ‘culturally unique.’”

The State Department recently stated that “all visa applications are subject to screening that protects the security of U.S. borders.” However, the L.A. Times reported “Immigration attorneys have also complained that they have been repeatedly asked to provide evidence to meet standards that are not required by law.” Again, bordering on the absurd, visa authorities asked for proof that an Indian dance group had been together for at least a year and that an African musical group would perform only at “culturally unique” venues that did not include its scheduled appearances at universities. Their attorneys pointed out that neither requirement was in the visa law.

The ARTery magazine from radio station WBUR in Boston states: “To bring international artists here, arts groups must file a petition with the U.S. Citizenship and Immigration Services. The organization must prove the artist will have contractual employment in the U.S. and that the artist is renowned—but that’s subjective…each visa application is at the discretion of the officer looking at it and some are kind of really giving it an extremely critical eye.”

Once U.S. immigration approves the artist’s petition, it goes to the U.S. embassy where the artist resides, to evaluate if there’s a risk the artist would stay in the U.S. after the visa runs out. There seems to be lot more skepticism from officers. The international community is feeling that the U.S. is becoming a hostile environment for performing artists.

In the pop world, the biggest visa brouhaha occurred at SXSW this past March, when several groups were denied entry to the U.S. for various reasons. One of the most contentious was the last-minute denial of Canadian-Egyptian drummer Yussef Dayes—who performs in two bands, the duo Yussef Kamaal and United Vibrations with his brothers. All three Dayes brothers had their status under the Visa Waiver Program (ESTA) revoked. (NPR noted that “Yussef Kamaal believes this decision “to be discrimination based on religion and race.”)

The same situation happened to the group, Massive Scar Era, based in Vancouver and Cairo. Further from NPR, “…the group was denied entry at the U.S.–Canada border near Seattle because, as performing artists, a CBP officer told the group that it needed to enter the U.S. with P-2 visas instead of B-1 (tourist) visas. The group was carrying a letter from SXSW asserting that its musicians could travel to the U.S. under the so-called “showcase exception” with tourist visas. (The band Soviet Soviet, which was also denied entry to the U.S. and returned to its native Italy, had also attempted to employ a letter from SXSW in a similar fashion.)”

So, it appears the pervasive attitude of the current administration is a cause for great stress and anxiety in the non-resident, traveling artist community and the venues that showcase them here. Can we ask for more consistency, clarity and coherence in interpretation and enforcement of the laws? Can we ask for visa officials who are more sophisticated, compassionate, worldly and knowledgeable about music and the artists?