[Blogger's note: Today's post is written by my colleague and friend, Karin Wolman. Karin's latest guest post, like her last one, available here, critiques USCIS policy changes that adversely affect the use of the O-1 visa category by artists and entertainers. When her last post was published on this blog, I was soon contacted by a senior USCIS official who expressed discomfiture and disappointment from the repurcussions her post caused for the agency. Let's see how the USCIS responds this time. I'm happy to give an agency spokesperson equal time on this blog to reply. ]
Based on public outcry from the arts community and the immigration bar, US Citizenship & Immigration Services has sought to engage stakeholders in a dialogue in order to understand why their policy memorandum of November 2009 regarding agents serving as O-1 petitioners was not well received, and why their ongoing, ever-narrower “clarifications” reinterpreting the regulations are so unpopular with the industries that rely on the O-1 visa. In short, that memo has substantively changed the interpretation of existing law and regulations, and it added new requirements not supported by the regulation, even though the regulations themselves have not been amended nor revised since adoption of the O-1 Final Rule in 1994. As a consequence, the landscape for O-1 visa sponsorship has changed dramatically.
The most recent opportunity for stakeholder feedback on Agent-as-Petitioner issues was provided by the USCIS Office of Public Engagement in a stakeholder teleconference on March 24, 2011. Some questions were answered, many remain unanswered. Speakers intimated that forthcoming answers in an as-yet unpublished Executive Summary may be even more unpopular and may further destabilize industries already facing serious economic challenges. The most alarming reinterpretation suggested was that USCIS may start to consider O-1 performers to have violated status if they have accepted any new engagements with any “employer” not named in the original petition, even though the regulation at 8 CFR 214.2(o)(2)(iv)(D) explicitly says, “In the case of a petition filed for an artist or entertainer, a petitioner may add additional performances or engagements during the validity period of the petition without filing an amended petition.” If USCIS pursues the suggested interpretation, it will upset almost two decades of settled practice, and would render nearly every O-1 actor, dancer, musician and singer out of status when they seek to extend stay, renew their visa or file for a change or adjustment of status.
The crux of the difficulty is the Service’s insistence on trying to create formulaic and rigid rules for a visa classification whose primary usefulness has been its flexibility, and has highly subjective legal standards, which have allowed individual adjudicators to apply their real-world knowledge and common sense. The consistency so dearly cherished and sought after by agency hobgoblins has led to “clarifications” and “interpretations” that turn long-established agency practice on its head, and destroy well-settled expectations in the professional communities that rely most heavily on the O-1.
Briefly, an “agent” in the O-1 visa context may be a US entity formally in business as an agent or business manager, e.g. providing artist representation; or it may be one among several prospective US employers/presenters/entities that wish to engage the services of the beneficiary (“Agent performing the function of an employer”), or it may be an unrelated party in the US that has a tax identification number and is authorized by the employers/presenters/entities that wish to engage the services of the beneficiary to serve as their agent -solely for the limited purpose of filing a visa petition to facilitate these engagements.
As indicated by the preceding paragraph, many problems in USCIS attempts to achieve consistency in interpreting the O-1 regulations stem from use of the words “employer” or “employment.” Those words often do not accurately characterize how work is done in fields of endeavor for which the O-1 visa is used. Although they get paid, most professional athletes in non-team solo sports, most fine artists and performing artists do not usually work in an employer-employee relationship. This is not rare, arcane knowledge: many Americans know when they go to the movies that the actors are not salaried employees of the film studio, but get a flat fee per film, or union scale rates for the time worked. When they buy a CD, they know that Lady Gaga is not an employee of the record label. When they watch a pro golf tournament, they know that Tiger Woods doesn’t have a boss. Apparently, USCIS has distanced itself from common sense understanding of how these industries work, and adjudicators are being asked to set aside their real-world knowledge and apply formulaic standards of “employment” to industries where an employer-employee relationship is not the norm. This is particularly sad and disturbing because the fact that there are many types of work in the arts and entertainment that do not fit the traditional employer-employee model was a foundational reason for the creation of the O and P visa categories in 1991.
The Service’s attempts to characterize all working relationships as “employment” have done considerable damage to the O-1 visa category already, and appear likely to do more, particularly in the context of O-1 petitions by an agent.
Requirements for a petition by an agent now include:
1) A written itinerary of confirmed engagements, including dates, addresses, rates of pay, etc.;
2) Contracts between employers/presenters and the foreign beneficiary;
3) Written consent for the agent to serve as visa petitioner from all other employers/presenters listed on the itinerary;*
4) Contract or summary of oral agreement between agent & foreign beneficiary.
Requirements 1, 2 and 4 are contained in the O-1 regulations exactly as they have existed since the Final Rule published in 1994, although interpretations of the regulations have changed considerably in the past three years. The written consent requirement is not authorized by regulation (lawyers call this ultra vires), and it creates another burdensome addition to the growing ream of paperwork required for artist sponsorship. Form I-129, until recently 4 pages, has mushroomed to 7 pages; the O/P Supplement, previously only 1 page, is now 2 pages. The thinking behind this agent-consent requirement is foggy at best. When the agent- petitioner already has to provide the contracts for each engagement, what is gained by also requiring a separate document from each presenterconsenting to the agent’s service as visa petitioner? Does USCIS really think the agent could otherwise have obtained the contract details by stealth, without the consent and cooperation of each presenter?
Neither O-1 regulations nor the November 2009 policy memo require the contracts between employers and beneficiary to be signed – a good thing, as that would effectively kill off the possibility of any foreign artists touring in the US, since lead time for signed contracts inthe performing arts is extremely short. Indeed, as long as all the material terms of agreement are spelled out at least roughly - type of work to be performed, where and when, for what compensation – and if there is as yet no formal written contract, the version of the agreement furnished with a visa petition may be a brief Summary of Oral Agreement laying out all these terms, but it need not be not signed by either party.
However, an O-1 petitioner must also obtain advisory opinions from the relevant labor unions in any field where there is one, and this covers all the performing arts. The number of unions that must be consulted depends on the type(s) of work offered in the US. Some unions have more stringent requirements than USCIS. Notably, O-1 petitions involving aliens of extraordinary achievement in film and television must always include at least two union consultations – one from a labor organization, such as the Screen Actors Guild or the American Federation of Television & Radio Artists, and one from a management organization, the Alliance of Motion Picture & Television Producers. AMPTP requires all contracts or deal memos to be signed, effectively ratcheting up the documentation standard.
With regard to the itinerary and supporting contracts, for a while (in late 2009 and early 2010) USCIS was automatically sending a Request for Evidence in any O-1 petition where there was a gap in the proffered itinerary of 45 days or more. That practice and policy was formally withdrawn per a USCIS memorandum of July 2010, but adjudicators retain broad discretion to request additional evidence in support of the petition validity dates requested. Their discretion is now being used not only to inquire about gaps in the itinerary, or where the end date of the period requested is any later than the end of the last documented engagement, but also to challenge the very nature of the proposed tour itinerary as a single “event.” Adjudicators apparently now have discretion to truncate the requested validity period at some arbitrary point in mid-itinerary chosen by the adjudicator, not by the agent or tour manager. What one hand gives, the other takes away.