Rising Visa Denials and Delays Keeping Artists and Arts Groups on Pins and Needles
This Thursday through Sunday, On the Boards will present a show you almost didn’t get to see, “L’Effet de Serge” by France’s Vivarium Studio (April 14-17, tickets). For the first time, says On the Boards, their request for an artist’s visa was denied.
“In our 34-year history we have brought hundreds of foreign artists to the U.S. and this is the first time that we have encountered this kind of visa difficulty,” reads the OtB blog. (More peculiarly, Vivarium Studio had just been granted a U.S. visa back in January.)
Despite giving themselves two months’ runway (visa clearance averages two weeks here on the West Coast), OtB had found themselves out of time. After being asked to provide evidence that the Obie Awards (“L’Effet de Serge” won a special citation in 2010) were like the Academy Awards, in terms of demonstrating “extraordinary ability,” weeks passed, and then the visa request was denied.
The organization was torn between canceling the show, or making a last-ditch effort, which they did, with the aid “several prominent immigration lawyers and congressional offices [Jim McDermott, Patty Murray] and foreign consulate offices.”
The push paid off, but On the Boards didn’t know until Tuesday last week whether they were going to put on a show this Thursday. It’s not an experience they’d like to repeat, but on the other hand, the evidence suggests that it may happen again:
Over the past few months there appear to have been changes internally at the U.S. Citizenship and Immigration Services that are impacting not just OtB, but also many of our arts peers around the country. The reason is unknown. In fact, OtB’s final show of the year, El Gallo, was to be presented in Chicago this past fall, but a unanticipated visa denial forced the presenter to cancel the show at the last minute and reschedule for the week prior to our engagement. In discussions with our peers this past week, we know of at least four other artist visa petitions that are experiencing unanticipated problems. Our lawyers estimate that problems that used to be encountered by approximately 5% of visa applications are now impacting over 60%.
Strangely, these stories of more rigorous visa procedures are coming after complaints about them surfaced last year, and promises were made then that the problem would be investigated and addressed. The Los Angeles Times ran the numbers:
The California service center’s denial rates for O visas, which apply to individuals, increased from 9.6% in the 2008 fiscal year to 19.6% this year. Denial rates for P visas, which apply to groups, jumped from 11.1% in 2008 to 26.8% this year. Requests for evidence also grew, from 16.2% of cases in 2008 to 37.5% for individual visas and from 21% to 44.3 % for group visas during that same period.
In August 2010, the new U.S. Citizenship and Immigration Services chief Alejandro Mayorkas decided to tackle the issue, ordering a review of visa guidelines, promising a 14-day visa processing window, and increasing staff training to improve consistency in how applications are handled.
UPDATE: Seattle Opera’s Ernesto Alorda, who handles artist visas for the company, told me he’d seen a distinct improvement since 2010 in the speed with which visas applications were handled. In fact, while he had anticipated trouble with a Mexican artist coming for the Opera’s recent Don Quichotte–the artist had been denied a visa a year earlier–the evidence the Opera provided with the petition seemed to satisfy USCIS officials.
The USCIS insists there was no policy change causing delays and denials, and indicates that it’s simply a case of needing to get better information from petitioners–but in case after case, what you see is the USCIS making more stringent (sometimes bizarre) requests of artists and groups. The Wall Street Journal found that Dublin’s Irish Modern Dance Theater had to prove their show, “Fall and Recover,” about the experiences of survivors of torture, was “cultural.”
Yet because, “stakeholders representing the arts, entertainment, and modeling industries” have continued to raise issues on the subject–this Wall Street Journal article quotes Tamizdat as saying their SXSW visa applications met with a huge increase in requests for evidence, from five to 50 percent–USCIS has been hosting “public engagements” on the “O” and “P” nonimmigrant visa classifications.
During today’s engagement, which I listened into via conference call, the USCIS spokesperson talked about the goal to “facilitate the introduction of talent into this country” being hindered by criteria that is “murky at best.” He said they wanted to “focus on the work that is being performed with the requisite level of skill” and “better understand the way the industry works,” to learn more about relationships between performers and representatives.
In the future, USCIS will be working with select industries, who will teach visa adjudicators how their industry works. There will be new RFE templates that focus on precisely what evidence is missing or dubious. And the USCIS has created an “emergency email line”–which entailed a long explanation of what an emergency was, ending with the admission that, no, it wasn’t clear what it was, but it certainly wasn’t bugging them to make an official declaration because a client still hadn’t heard.
As for urgency, you’re encouraged to use the email line only “if more than 30 days have passed.” As for consistency of implementation, it’s hard to miss the sense of the centers being on different pages from their varying use of hyphens and periods:
California Service Center: firstname.lastname@example.org
Vermont Service Center: email@example.com
Nebraska Service Center: firstname.lastname@example.org
Texas Service Center: email@example.com
I listened for an hour and twenty minutes, and heard more than one artists’ representative complain about an “enormous proliferation of RFEs and denials,” without a single USCIS staffer mentioning why that was. They were happy to talk regulatory arcana, but, happy bureaucrats, they made it clear that their help was going to be limited to helping round artists pound themselves into square regulatory holes.
None of this, then, addresses why the crackdown seems to have begun in 2008, and to have heated up even more recently, as the USCIS attempts to fix a problem they won’t officially acknowledge the roots of. [UPDATE: My thanks to Public Affairs Officer Sharon Rummery, who notified me of the conference call in the first place. Her comment was: "I thought the engagement was very productive, and that we’re eager to listen and learn from those who we serve."]
I spoke to immigration lawyer Michael Wildes, of Wildes & Weinberg P.C., who handles people who possess inarguable “extraordinary ability” (such as soccer’s Pelé), but even he agreed that his clients were facing greater challenges from USCIS, particularly from the West Coast service center.
Clients who are not superstars have to document their itineraries exhaustively and may have to work very hard to show a sustained level of achievement, as noted in the media. Especially in the fashion and recording industries, he pointed out, where many artists are young, self-employed, and under-the-radar, the very circumstances of their career make it difficult for them to successfully petition.
To emphasize the level of scrutiny, he instanced immigration monitoring artists’ Facebook profiles and holding up performance-related equipment. He advises artists to take immigration counsel well in advance of their trip or tour, and to scrupulously collect every mention of their work in the media.
“Why challenge artists more in these difficult times?” asked Wildes, rhetorically. “We are losing out on new talent.” It was a question and frustration voiced many times during the conference call today; it was never answered.