By Cynthia B. Hemphill
Attorney / Shareholder
Trow & Rahal, P.C
George Bernard Shaw once said, “Without art, the crudeness of reality would make the world unbearable.” However, if you are a performing artist hoping to work in the U.S., the reality is that it’s not always easy to obtain the performance visa (P-1, P-3 or O-1) prior to entering the U.S.
In fact, the agency responsible for adjudicating the performance visa applications — the U.S. Citizenship and Immigration Services (USCIS) — has issued increasingly inconsistent and, at times, arbitrary decisions resulting in denials and cancelled performances.
Consider These Examples
- In Minnesota last year, the Cedar Cultural Center canceled a fall performance by East African singer Minyeshu Tedla and her band because their blend of Ethiopian music with pop, jazz, blues, and reggae was not “culturally unique” according to the USCIS.
- Also in 2009, Argentine band Orquesta Kef had to cancel its “Fiesta Hanukkah” concert in Los Angeles because the USCIS did not consider the group’s fusion of Jewish Klezmer music with Argentine tango to be “culturally unique.”
- Grupo de Rua de Niteroi, the Brazilian all-male hip hop dance company that performed in Berlin, Paris, and Tokyo, barely made its U.S. engagements on P-1 visas this past February, due to the need to respond to a lengthy USCIS request for additional evidence that questioned whether the group met the “internationally recognized” standard for this visa category.
- Canadian award-winning modern dancer Ashley Werhun, who previously had a one-year O-1 visa in 2008 to perform with the Trey McIntyre Project in Boise, Idaho, had a renewal petition denied in February 2009 when the dance company wanted to extend her visa for its next season. The company received a request for evidence from the USCIS requiring additional documentation that Werhun was exceptional in her field and that her dancing was superior to the other dancers in the troupe. When the USCIS rejected the submitted response, Werhun was forced to return to Canada. She was able to rejoin the troupe in the U.S. mid-season in O-1 visa status, but only after a new petition was submitted by a U.S. immigration attorney with an accompanying support letter from the state’s congressman.
How can you increase the odds of success?
First, minimize the chances of a denial and/or inherent delays if the USCIS issues a request for evidence by knowing what applicable USCIS regulations are involved. Each performance visa has specific standards and criteria that must be satisfied through detailed documentation. Generally:
- In order to satisfy the international recognition standard of the P-1 visa category, an entertainment group must have attained a “high level of achievement in the field evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that such achievement is renowned, leading, or well known in more than one country.” USCIS regulations provide a list of P-1 evidentiary criteria in which at least three forms of documentation and/or comparable evidence must be provided by the group.
- The P-3 classification is for artists and entertainers who individually or as a group provide a culturally unique style of artistic expression.
- The USCIS uses the term “extraordinary ability” for the O-1 category. However, for artists, extraordinary ability means “distinction,” which is defined as “a high level of achievement in the field of arts evidenced by 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.” As with the P-1, the O-1 regulations provide a list of evidentiary criteria, of which forms of documentation and/or comparable evidence must be supplied to and meet the satisfaction of the USCIS examiners.
Moreover, fully understanding the rules will help petitioners recognize when a USCIS adjudicator incorrectly cites to the regulations. It is important to note that just because the USCIS issues a request for evidence does not mean that the documents that were initially provided in the application were insignificant or insufficient. Most USCIS requests for evidence are template driven; examiners can overlook some key evidence and sometimes the relevant regulations are misquoted.
Here’s How You Can Plan Ahead
To avoid delays, it is important to begin the process well in advance of when you expect to come to the U.S.
In fact, a 34-member group recently contacted me to get an overview of the immigration process and start figuring out the logistics of their U.S. tour, even though the performance is not slated until April 2011.
It may seem premature to some organizations and artists, as there may be changes in dates, some group members may not be able to make the tour, etc. However, this group now understands the types of evidence it needs to collect and provide to me as its performance date approaches.
The result of such planning will be a well-documented, approvable petition. Also, it is possible to file the petition with the USCIS as early as one year in advance of the U.S. entry date, which will provide more time to respond to any request for evidence that may arise.
Another benefit: Upon approval of the petition, each group member should have ample time to complete the requisite online visa application and attend a visa interview at a U.S. consulate to have the visa imprinted in his/her valid passport. Preparing for the consular interview can be just as important as the petition filed with the USCIS, as issuance of the visa by the U.S. Department of State can be denied despite the fact that the petition was approved.
Signs of Hope
It may be comforting to know that because of the outcry of dissatisfaction by performing arts organizations, the American Immigration Lawyers Association (AILA), and other interested parties, USCIS Director Alejandro Mayorkas has initiated an O and P visa initiative to establish consistent review standards of petitions by examiners.
At the recent AILA National Conference held from June 30th to July 3rd in National Harbor, Maryland, Mr. Mayorkas indicated to a room of hundreds of U.S. immigration attorneys that “USCIS needs to work on welcoming and embracing O and P groups.”
Additionally, the USCIS just held an O and P Stakeholders meeting on July 20 to hear concerns from immigration attorneys, organizations and performing artists.
Hopefully this is a sign that the USCIS is moving away from its philosophy of “No” and toward enabling international performers to share their talents with our country.
About Attorney Cynthia Hemphill
Cynthia Hemphill is Vice President and Legal Team Manager at the DC-based immigration law firm Trow & Rahal, PC. She has practiced immigration and nationality law for more than 14 years. In addition to working to achieve the goals of Trow & Rahal’s corporate clients, she handles immigration matters for athletes, performing artists and groups, as well as family related matters including international adoption cases.
Cynthia’s reputation within the legal community has led to selection by her peers for inclusion in the prestigious publication, The Best Lawyers in America. She is a member of the American Immigration Lawyers Association (AILA), the Women’s Bar Association, and the District of Columbia and New York State Bar Associations.
She has written and/or co-authored a number of articles on family immigration matters. She wrote “Hague Adoption Convention Implemented in the U.S.” published in the September/October 2008 issue of The Maryland Bar Journal. She co-wrote “Intercountry Adoptions: Procedures and Potential Issues After Ratification of The Hague Adoption Convention” that was published in AILA’s International Adoption Sourcebook (2008); “Intercountry Adoptions: Understanding the Procedures One Year After Implementation of the Hague Adoption Convention” published by AILA in 2009; and “When Relationships Are Amended: How Changes in Family Relationships Can Affect Our Sense of Time” soon to be published in the AILA National Conference 2010 resource materials.
At the 2008 AILA National Conference (Vancouver, British Columbia), Cynthia spoke on “Adoption and Related Immigration Issues After the Hague Convention” and is slated to be a guest speaker on family immigration matters on a panel at the 2010 AILA National Conference in National Harbor, MD. Cynthia is an editor of the Women’s Bar Association newsletter, “Raising the Bar”.
Cynthia received her J.D. degree from the Howard University School of Law in 1993. She received her B.A. degree in Psychology from Yale University in 1983.