Painting a Picture of Artist O-1 Visas Under the Trump Administration
Emily T. Behzadi, Esq.
Immigration & International Law Committee // The Briefs, January 2020, Vol. 88 No. 1
In 2018, Iraqi-Kurdish artist Hiwa K had his visa petition denied twice before his major solo exhibition at the New Museum in New York City.1 That same year, the popular Zapotec street artist duo, Dario Canul and Cosijoesa Cernas, were banned from reentering the U.S. for the next five years.2 These are only a few of many examples of art and cultural exchange that the United States missed as a result of the current administration’s efforts to severely curtail the availability of artist visas. From the so-called “Travel Ban” to the “Buy American and Hire American” policy, the administration’s dramatic shift in policy has made it incredibly difficult for lawyers to achieve favorable results on behalf of artists and art organization clients.
“Extraordinary Ability” & the O-1 Visa
For a visual artist, working in the United States in any capacity, either for an exhibition, to work on commission, or for full-time employment, requires an approved visa, authorizing employment in the United States. Oftentimes, this process is both time-consuming and discouraging, especially when the merit of the artist’s work is intertwined with their qualification for a visa. The O-1B visa, which is perhaps the most utilized of the visa categories available for artists, requires the artist to prove that he or she possesses a certain level of “distinction,” which is defined as a “degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.”3 This essentially means that the artist must prove their objective worth through the subjective eyes of the United States Citizenship and Immigration Services (“USCIS”) adjudicator.
In order to prove this high threshold of “distinction,” the artist’s attorney must assemble a robust package of materials, evidencing either that the artist has been nominated for or received a “national or international award or prize,”4 or that the artist meets three of the six following regulatory criteria:
(1) The artist has performed, and will perform, services as a “lead or starring participant” in productions which have a distinguished reputation;
(2) The artist has been published in major or trade publications;
(3) The artist has performed, and will perform, in a lead, starring, or critical role for organizations that have a distinguished reputation;
(4) The artist has a record of major commercial or critically acclaimed successes;
(5) The artist has received significant recognition for achievements from organizations or recognized experts in the field
(6) The artist has or will command a high salary relative to others in the field.5
While providing evidence of three of the six criteria is technically sufficient, only meeting three criteria will likely be the petition’s undoing. The regulation’s use of such broad and vague language such as “distinguished” and “international recognition,” without any definitions or guidance, gives USCIS ample opportunity to adjudicate individual petitions based on subjective rather than objective standards. Indeed, adjudicators more often than not consider the weight of each of the criteria disparately, leaving practitioners in the dark as to how to apply these seemingly fluid standards.
The focus of the criteria is more about the reputation and fame of the artist, rather than the artist’s actual talent, notwithstanding the use of the term “ability” in the regulations to indicate otherwise. In order to be extraordinarily talented, USCIS presumes that an artist must have attained a certain level of renown in the field, which would be evidenced by starring roles, commercial success, and high salaries. As USCIS relies heavily on the renown of the artist, it is incumbent on the attorney to provide objective and primary evidence of the enumerated criteria. The evidence most widely recognized as the strongest includes periodicals from trade journals and major publications. USCIS has been slow to recognize alternative or emergent sources of publicity such as blogs, podcasts, YouTube videos/news, social media, and forums, among others. The result of these stringent requirements usually precludes younger, emerging talent, who might be innovative and extraordinary but who may have not built the strong fanbase on traditional media to qualify for a visa. One of the most difficult hurdles an attorney must overcome is providing USCIS with sufficient evidence to satisfy these fluid and subjective requirements for “extraordinary ability.”
- Additional Regulatory Obstacles for Approval of O-1 Artist Petitions
In addition to meeting the difficult regulatory standards of “extraordinary,” an attorney must also examine other considerations regarding an O-1 petition. In particular, an artist must find a petitioner to file on their behalf with USCIS. Only U.S. employers and agents may serve as petitioners.6 This is particularly tricky in the arts industry, as artists are usually self-employed and often “freelance” as part of their full-time jobs. In order to overcome this impediment, visual artists will use an “agent” to apply on his or her behalf. This “agent” could be the agent or manager in the United States who procures work for the artist and with whom the artist has a contract, or this could be a representative of an artist’s foreign employer.7 More often, visual artists use a gallery to act as the agent petitioner, who will then petition on behalf of other galleries or art organizations where the artist plans to have an exhibition.
A corollary to this petitioner requirement is the obligation for all O-1 petitions to include an “itinerary,” which serves as an explanation of all events or exhibitions in which the artist intends to participate in the United States over the next three years.8 The itineraries must include beginning and end dates and the location and nature of each event and/or exhibition. Although this requirement is seemingly straightforward, the itinerary is one of the more difficult features of the O-1 petition. In the fine arts industry in particular, exhibitions, commissions, and other projects are rarely booked a few months in advance, let alone three years.
All O-1 petitions, including artist visas, require an advisory option from a union or management association confirming that the industry has “no objection” to the individual artist’s employment in the United States.9 While professionals in live theater and the motion-picture business may seek advisory opinions from the International Alliance of Theatrical Stage Employees (“IATSE”),10 painters and other artists of emerging or fringe media do not have an organization to seek such an opinion letter. As such, these artists must produce “peer letters” from experts in the industry, which, as a result of rigorous policies outlined below, could also be considered insufficient.
- The Complexity of Obtaining Artist Visas During the Trump Administration
The impetus of the Trump Administration’s gradual decline of foreign artist visas hailed from the Executive Order on “Buy American and Hire American,” which seeks “to rigorously enforce and administer the laws governing entry into the United States of workers from abroad” in order to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.”11 To effectuate this new policy, on September 11, 2018, USCIS published a policy memorandum permitting denial of visa petitions that USCIS adjudicators deem to be “frivolous or meritless” without requesting more information.12
As a result of this policy objective, USCIS now has ostensibly unfettered power to issue denials without any requirement to explain their reasoning. While the purported goal is “not intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirements,”13 the consequences of this memorandum have undoubtedly given USCIS adjudicators the power to do just that. Despite the expansively discretionary nature of this memorandum, USCIS has provided no guidance or parameters for practitioners to effectively predict whether a slightly weaker petition could be considered “frivolous or meritless” by a biased adjudicator.
Of those petitions not initially considered “frivolous or meritless,” Requests for Evidence (“RFE”) (demands for additional supporting material for petitions), have increased exponentially.14 While adjudicators must apply the same law under the Immigration and Nationalization Act (“INA”), these RFEs have continuously misapplied the law, demanding additional evidence not required by the regulations.15 The massive influx of RFEs is a result of President Trump’s so-called “extreme vetting,” which direct “immediate implementation of additional heightened screening and vetting protocols and procedures for issuing visas.”16 Under this “extreme vetting” policy, USCIS thoroughly scrutinizes every piece of evidence submitted with an individual petition. It is now up to practitioners to essentially act on the defensive at the initial petition stage.
The unpredictability of the petition process is further exacerbated by the fact that USCIS may approve a petition in the United States, but when a foreign artist interviews at a U.S. Embassy or Consulate abroad, the State Department can deny issuance of a visa based on subjective issues it might find with the initial petition.17 This trend has become more pervasive, especially in consulates such as the U.S. Embassy in London.
Due to these new standards, the amount of time it takes an attorney to compile a petition has increased ten-fold. It is thus important for the attorney to provide clients with not only realistic timeframes of attorney work time but also increased processing time at USCIS and the embassy abroad. Likewise, attorneys must take into account the extra work each petition requires in determining legal fees.
As a consequence of some of these rigorous and unclear policies, several museums and art institutions have postponed or cancelled future exhibitions that require the presence foreign artists, curators, scholars, or speakers.18 The unpredictable nature of the current immigration law policy poses significant legal hurdles and monetary risks for those U.S.-based art organizations desiring to curate exhibitions of foreign artists. Attorneys must inform their clients – either the individual foreign artists or the employer art organizations – of these new standards in order to provide the client with a risk/benefit evaluation and a realistic expectation of success.
Emily T. Behzadi, Esq., is an associate attorney for Meehle and Jay, P.A. She currently serves as the chair of the ABA YLD Entertainment & Sports Industries Committee and is a member of the OCBA Immigration & International Law Committee. She has been a member of the OCBA since 2015.
1 Gabriella Angeleti, Trump’s Travel Ban: Artists And Museums Speak Out Against Third Iteration, The Art Newspaper, (April 26, 2018), https://www.theartnewspaper.com/
news/artists-and-museums-around-the-world-speak-out-against-third-iteration-oftrump-s-travel-ban (last visited Oct. 25, 2019).
2 Deborah Vankin, Oaxacan Muralists’ L.A. Works Give Voice To Indigenous Peoples — But The Artists Cannot Travel To The U.S. To View Them, Los Angeles Times (Aug. 29, 2018) https://www.latimes.com/entertainment/arts/la-et-cm-tlacolulokos-visarevoked- 20180829-story.html (last visited Oct. 25, 2019).
3 8 CFR § 214.2(o)(3)(ii).
4 The statute specifically references the Academy Award, an Emmy, a Grammy, or a Director’s Guild Award, which are all inapplicable to the visual artsarts. 8 § CFR 214.2(o)
5 8 CFR § 214.2(o)(3)(iv)(B).
6 8 CFR § 214.2(o)(2)(i).
8 8 CFR § 214.2(o)(2)(ii)(C).
9 8 CFR § 214.2(o)(2)(ii)(D).
10 “Address Index for I-129 O and P Consultation Letters” (Aug. 19, 2019) https://
www.uscis.gov/working-united-states/address-index-i-129-o-and-p-consultation-letters (last visited Nov. 15, 2019).
11 Exec. Order No. 13788, 82 Fed. Reg. 18837 (April 21, 2017).
12 United States Citizenship and Immigration Services, “Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b),” (PM-602-0163)(July 13, 2018).
13 Id. at 2.
14 See Daniel Grant, How Trump’s Immigration Crackdown Is Targeting Artists, Observer (Sept. 13, 2018), https://observer.com/2018/09/o1b-o2-artist-visas-harder-under-trumpuscis- immigration-lawyers/ (last accessed Oct. 25, 2019).
15 See. e.g. Id.
16 Memorandum to the Secretary of State, the Attorney General, and the Secretary of Homeland Security on the implementation of Executive Order 13780, 82 Fed. Reg. 16279 (April 3, 2017).
17 9 FAM § 402.13-9(A).
18 See e.g. Brief of The Association of Art Museum Directors, The American Alliance of Museums, The Association of Academic Museums And Galleries, The College Art Association of America, and 112 Art Museums as Amici Curiae, Donald J. Trump, et al. v. State of Hawaii, et al., 585 U.S. (2018) (No. 17-965).