CALL TO ACTION
PROPOSED CHANGES TO US VISAS FOR INTERNATIONAL ARTISTS

 

Proposed changes by the U.S Department of Homeland Security will mean international artists and crew will see the filing fees charged by USCIS for P and O visas increase by up to 260%, whilst the guaranteed processing time for USCIS’s Premium Processing Service has been lengthened.

Touring in the US is already prohibitive, and these proposed changes will add further financial burden and significantly impact Australian exporting artists, professionals and crew seeking to work in the USA on P and O visas.

 

What is the proposal?

The US government has proposed the following changes:

• The USCIS filing fee for P petitions would increase by 251% (from $460 to $1,615) and by 260% (from $460 to $1,655) for O petitions. These increases both include a $600 surcharge to fund asylum processing. 
• The Premium Processing Service’s guaranteed processing time would change from 15 calendar days to 15 business days.
• The total number of individuals on a single petition, including O-2 and P arts petitions, would be capped at 25 beneficiaries. This would require multiple petitions for larger ensembles, such as orchestras or ballet companies.

 

What can you do?

Sounds Australia is encouraging all Australian exporting artists, music businesses, trade organisations and Governments to submit a public comment online through the Federal Register by the deadline of Monday 13th March 2023.

To do so, go to the Federal Register portal and click on the green “Submit a Formal Comment” tab in the upper righthand corner to begin your public comment.

SUBMIT to the federal register HERE

It is important that your comments are somewhat unique and contain specific details about the impact to you as an individual or organisation (as we understand that USCIS reviewers of comments use an app to “weed out” any identical responses in the Federal Register).

You should write about how this proposed rate increase would impact you financially, if you are a presenter or agent, and/or artistically, if you are an artist who creatively and commercially relies on performing in the United States.

If it is useful as a starting point or to incorporate into your own response, we have compiled some ideas and commentary from visa experts and other advisers.

Please feel free to adapt, as they apply to you:

– The Arts simply cannot afford this, and any fee increase must be accompanied by improvements to the artist visa process to make it more efficient and reliable. For years arts organizations have rallied around recommendations that would improve the artist visa process. Until USCIS has reviewed and implemented these changes—which would substantially decrease USCIS costs—any I-129 fee increase for O and P visas is unconscionable.

– The proposed fee increases place a disproportionate burden on the performing arts industry and non-profit organisations that have already been decimated by the pandemic.

– Drastic fee increases will stifle international cultural activity, put U.S.-based jobs at risk, and have a negative economic ripple effect on communities supported by arts events.

– USCIS offers no guaranteed timeline for I-129 petition regular processing but is now unreasonably increasing the cost for filing by 260% for O visas and 251% for P visas. Although USCIS offers estimated processing times, there is no accountability when USCIS goes over the estimated timeline; subsequently requiring clients to pay premium processing to dislodge stuck petitions. Currently, despite the online estimates of 1 month, most O petitions are taking over 6 months at the California Service Center. If USCIS is raising the cost per petition by 260%, there should be a guaranteed timeline that is a reasonable time: 1-3 months. The increased price is not justified by the current service.

– Premium Processing Change: Given that USCIS objects to “speculative work”, petitioners often have to apply for visas at the very last minute, spending an additional $2500 USD per petition. However, by moving premium processing from 15 calendar days to 15 business days, the new rules would make it impossible to obtain an O or P visa for a beneficiary in under 4-5 weeks; not only is it 3 weeks at USCIS without an RFE (Request For Evidence), but at least 1-2 weeks’ consular processing.

-This is a catch-22 that will make productions in the US impossible for many US stakeholders. USCIS cannot both: i) refuse to allow flexibility for future work; and ii) make it impossible to quickly process petitions. This will be a disaster for US entertainment stakeholders.

– Altogether, the significant cost increase for  O and P petitions, together with premium processing delays, will make the US an unappealing (if not entirely non-viable) location for many productions and tours, with a particularly chilling effect on independent productions and touring musicians. This is an unreasonable burden on US entertainment stakeholders and not supported by the underlying objectives of these fee increases. This is bad for US business and bad for US government revenue in the long term.

– Already the greatest barriers to exporting Australian music to North America are the difficulty, time and cost associated with petitioning a Visa. The fees incurred are more than twenty times the cost of the same process in 1991 and the USA is the only country we tour to with such prohibitive visa entry costs.

 

Important Considerations to be aware of

This proposal has not yet been approved: The last time USCIS tried this, in 2019, they were blocked by a court order (Immigration Legal Resource Center et al., v. Wolf, et al., N.D. Cal., No. 4:20-cv-05883 (2020). This time their proposal is also potentially legally problematic, so there is a good chance that with sufficient advocacy, this will never happen. So don’t despair; take action!

The proposal will increase the government’s filing fee, however that isn’t —and will not—be the most expensive part of this process. For most touring artists, the exorbitant cost of obtaining a US work visa does not come from the filing fee: the high-ticket items are attorney fees and the government’s expediting fee (“Premium Processing”) for processing an urgent petition quickly. Neither of these costs would be impacted by the proposed fee increase. It’s just worth acknowledging when headlines are saying that “Foreign Musicians Would Pay 250% More For Touring Visas,” – as this is misleading. The increase of 250% is on the filing fee and not the total cost of obtaining a visa which is typically $5,000 – 8,000 USD.

There is an enormous amount of concern about this proposal. And it is incredibly unfair (and arguably unlawful!¹) that the arts community is being asked to foot the bill for increased bureaucracy, when this perpetually increasingly bureaucratic process is already unfathomably burdensome (and arguably unlawful!²). Lengthening the Premium Processing time means degrading a service that recently saw a 74% fee increase³. And the 25-person cap for O-2 and P petitions massively increases the all-in cost for large ensembles, while multiplying the risk of administrative errors. 

 ¹ Immigration Legal Resource Center et al., v. Wolf, et al., N.D. Cal., No. 4:20-cv-05883 (2020), in which the court, in enjoining USCIS’s proposed 2019 fee increase rule, discussed the proposed rule’s possible substantive violations of the Administrative Procedure Act. 

² USCIS has historically failed to routinely process I-129 petitions within the statutorily required 14-day limit (see Section 214(c)(6)(D) of the Immigration and Nationality Act).

³ On October 19, 2020, USCIS increased the Premium Processing fee for P and O petition from $1,440 to $2,500.

What else can you do?

In addition to submitting your public comment online through the Federal Register you can;

1. Help spread the word and make sure all those in your network who will be impacted by the proposed changes are making their own submissions.
2. Encourage your US based teams (booking agents, labels, publicists, etc) to forward copies of their comments to their U.S. senators and representatives in Washington, articulating and stressing the negative impact the fee increases will have on their Australian (and other international) clients and partners.