7 Reasons for U.S. Artist Visa Denials
You're an artist. You want to perform in the United States. You need a visa that gives you work permission. But the tricky thing about immigration is that there is always a chance of denial, both in the application process and at the border. The requirements are written in remarkably vague language, giving the officials reviewing your case tremendous discretion, with little in the way of accountability. In my years filing such petitions, I have encountered vastly different timelines and evidentiary needs. Here, below, are 7 known and lesser known causes for artist visa denials to look out for.
Nonimmigrant Artist Visas: a very quick overview of requirements for P-1B & O-1B visas
Simply put, individual artists/performers need an O-1B visa, while groups (think bands, ensembles, orchestras, etc. ) need a P-1B. If the group is sufficiently culturally unique, a P-3 petition may be appropriate. Unlike tourist visas, you can't simply set up an appointment at a consulate abroad and apply for one. Before you do that, you have to arrange for a U.S.-based person or organization to act as your petitioner. The petitioner will complete a consultation with the appropriate labor union and file a petition with United States Citizenship and Immigration Services (USCIS). Once these are approved and a I-797 notice of approval is issued, the beneficiary (you, the artist) attends an interview abroad at your consulate of choice, which will ultimately issue the actual visa. The appointment can be made as soon as you receive a receipt number from USCIS, which is contained in the initial notice that the petition has been received. Since there can be significant consular wait times, it is strongly encouraged to fill out the online appointment form (DS-160) as soon as possible after receiving the receipt number so that a timely appointment date can be secured.
ARTIST VISA STANDARD OF PROOF?
O-1B visa requirement: prove you are an “individual with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry.”
P-1B visa requirement: prove you are, collectively, an “entertainment group that has been recognized internationally as outstanding in the discipline for a sustained and substantial period of time.”
What could possibly go wrong?
Running out of time
Time. Huge. There is nothing more unpredictable and more mysterious in the artist visa petition universe than the timeline for USCIS processing of your petition. I've seen our petitions processed in anywhere from two weeks to 5 months, even when submitted at the same time. Unless you are using Premium Processing (a $2,805 fee payable to USCIS guarantees adjudication in 15 business days), there simply is no maximum processing period you can confidently rely on. USCIS makes it very clear that even their own published guidelines are just that: guidelines, with no real force in reality. The summer of 2019 saw a large number of high profile festivals having to cancel visits by world renowned international artists due to severe USCIS backlogs.
Apart from waiting too long to petition, many petitioner have succumbed to unexpected requests for further evidence (RFE) issued by USCIS. Unless the petition is frivolous, USCIS does not typically reject visa petitions right away. If they are unsatisfied with the materials included in your petition, they typically send you a RFE. They might point out that you need to submit more detailed proof of the upcoming events, or might want more evidence of your artistic acclaim. Either way, it takes a whole lot of time. It can easily delay things by an extra month or more. Expect the unexpected. Plan for it.
All in all, I recommend, to be on the safe side, leaving at least 5 months for the petition to result in a notice of approval (I-797). The labor union consultation typically takes about 2 weeks. although some organizations do have expedited offerings. Visa processing at the consulate, bearing in mind that all consulates operate a little differently, can take about 5 days to a week, on average. Which means, should you intend to arrive in the U.S. towards the end of June, you should start planning on having the materials finalized and ready to go around the beginning of the year. The sooner, the better, of course.
2. Unexplained evidence
Other than not providing sufficient evidence or running out of time, the next biggest error in the content of petitions is inadequately explained evidence. Indeed, you have to provide the evidence and explain what it all means. You might have submitted a whole bunch of letters of recommendation, reviews, and articles to prove what an internationally renowned artist you are. Anyone in the field would be mightily impressed. But USCIS officers should not be assumed to be members, or even fans, of the art world. To put it mildly: we should assume that the USCIS officer reviewing your petition knows very, very little about the performing arts or otherwise well-known venues, prizes, personalities or institutions.
Therefore, whenever an award is mentioned, we must explained in great detail why that particular award is so significant in showing your international recognition. The same goes for the people giving references - they must explain their excellence also (i.e. why they are so qualified to confirm your excellence). The bigger the credentials, the better. Spell it out. Don't be afraid to have your recommenders describe themselves as one of the very top experts in their field. In this case, modesty can only be detrimental.
3. No confirmed U.S. events
Being a great, respected performer is not entirely enough. To receive work permission under these visas, there has to be a stated reason for it. It goes both ways: to perform in front of an audience with the primary intent to entertain, you need work permission. To get work permission, you need a confirmed performance. You cannot apply for the O-1B or P-1B visa with the intent to only later line up a gig.
Performances are typically proven by including a copy of a signed performance agreement of sorts in the petition. The next best thing is a letter of invitation. You might even – remembering the broad discretion involved – get away with including some confirmatory email communications, or perhaps not having a contract for every single event when there are a few fully contracted ones included on either side of it. So much depends on the USCIS official. But one thing is certain: you need to include an itinerary that supports the visa start and end dates requested in the petition. Best practice is not to try to not leave a gap longer than 3 months, or to thoroughly explain such a gap if it is unavoidable.
4. Improperly translated documents & other technicalities
Another classic error. USCIS does not consider materials in any language other than English. And you can't just send in a translated article or letter either. You must provide the original and the translation, and you must certify that you (or whoever does the translation – it can be any competent person) are sufficiently familiar with the languages in question to accurately translate. USCIS wants a signed statement with each translated document that looks like this:
I, [name], certify that I am fluent/conversant in the English and [language] language, and that the above/attached document(s) is/are an accurate translation(s) of the original document.
Date: ___________ Signature: _________________
There you go. Talking about signatures, please note that there are at least two places the petitioner needs to sign on the actual I-129 form initiating the petition. Read it carefully. An omitted signature is the most menial oversight of all, but an oversight that will cause your petition to not be processed.
5. The 75% rule
Here's one lesser known one. At least 75 percent of the members of your group must have had a “substantial and sustained relationship” with the group for at least one year. What is substantial? What is sustained? You might get away with including someone that has, for instance, regularly appeared as a substitute player in your ensemble for more than a year. Fully describe the role and maximum extent of involvement, providing dates. Note that it is possible to ask for an exemption from the rule – for, say, illness/“exigent circumstances,” or persons performing critical roles needed to temporarily “augment” the group – but it is strongly advised to not, as far as possible, rely on exceptions. At the very least, you would need to explicitly ask for an exception and state compelling reasons in order to be granted one.
6. Not asking for help
The community of lawyers and consultants experienced in artist visa petitioning are, in my experience, an exceptionally friendly and helpful bunch. We love to help! Ask us questions!
An inexperienced petitioner can be forgiven for believing that merely following the instructions on the USCIS website would be sufficient to ensure success. Stated policy and reality, however, are two very different animals. Sure, USCIS provides a general guideline in PDF form. Have a look. You will quickly notice that it is not only that the requirements themselves are vaguely written, but the fulfillment of those requirements are not describe in definite terms either. Note how often qualifying words such as “may” are used. This or that may be sufficient. By implication, it also may not. Even experienced petitioners are regularly met with surprises. At the very least, inexperienced petitioners should not attempt petitioning without at least consulting someone who has done it before.
7. “Performing for free”
Although this last one is technically not a reason for an artist visa petition denial, it is so widespread and fundamental that it simply cannot be omitted.
Possibly the single most prevalent misconception among international artists is that an artist visa is not needed when the performing artist is not getting paid, or not making a profit. Not true. On both counts. As long as you are performing in front of a U.S. audience and your primary intention is to entertain, you'll be needing a visa that includes work authorization. Narrow exceptions do exist. If you are merely auditioning or performing at a well-recognized showcase, the purpose of which is not to entertain but rather to secure future bookings, you can attempt to rely on the so-called “showcase exception”. It does come with the inherent risk of relying on the border official's discretion. He or she might just not be convinced. SXSW, for instance, is often not considered a “showcase” for the artists performing on stage. Even if one band might have managed to enter without a work-authorizing visa, there is no guarantee that your band would be allowed to do the same. It is a system based on wide-ranging discretion.
Final note:
As tempting as it may be, please: do not attempt to perform in the U.S. without proper documentation. You may have heard of a few (lucky) ones who managed to do so (most likely a few years ago...). But it is not worth it. Things have changed. Your event will likely leave an easily accessible online trail. Apart from being turned around at the border – losing out on all those gigs, plus the waste of unused accommodation and travel costs – getting caught working in the U.S. without permission can cause serious immigration issues in the future.
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Thanks for reading and best of luck!
Rey Hulme, Esq.
Immigration Law Office of Rey Hulme
ABOUT THE AUTHOR:
Rey Hulme is an immigration lawyer with years of experience in artist management.
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