Help! The Play Date is Booked – What about a Visa? The Merry Confusions of U.S. Immigration Law Presentation for Guitar Foundation of America 2010 International Convention & Presentation Austin June 23, 2010 James D. Prappas Partner Jackson Walker LLP Disclaimer: This presentation is for informational purposes only, and is not intended to be considered legal advice. Each immigration matter can only be examined and treated in the specific context of an individual’s facts and circumstances.

Prologue: Immigration a Complex Area of Law:  20+ temporary visa categories  5 separate permanent employment-based categories, each with multiple subcategories Interaction/Synergies Among Various U.S. Laws for Events Employing Foreigners  Employees, Employment Law & Unions  Contracts & Agents  Intellectual Property  Non-Profit Operations & Rules

SET I – Framing the Story Current Challenges **Plan Well Ahead to Avoid Show-Impacting Visa Delays** (No Other Advice More Important) U.S. Government Concerns & Patriot Act Xenophobia & Anti-Foreign Sentiment/Stiff Examinations Lookout Systems & NSEERS  E.g., “Similar Name” Hits  Minor Criminal Issues in An Employee’s Past Employer Compliance and USICE Raids (union driven sometimes)

Most Frequently Used Categories for Musicians VWP (WB) – Visa-less Entry for Business B-1 - Visitor for Business O-1 – Outstanding Artist/Foreigner P-1 - H-1B – Professional/Specialty Worker F-1 Student J-1 Exchange Visitor

Set II – The Confusion Begins (and the Characters Multiply) Basic Criteria for VWP (WB) & B-1 Business Entry Temporary and Brief in Nature Traveler Remains Employed Abroad & Will Return Abroad Paid Abroad, Principle Work Done Abroad Examples:  Conferences  Negotiations  Set Designers – Installation of Foreign-Produced Sets

WB/B-1 Issues: “Gray Area” – Court’s Words What is “Work” and What is “Business”  Distinctions: Less-Than-Clear  Directors: Prime “Gray” Example - Working, Generally Port of Entry USCBP Inspectors Lean toward “Work” if a Question Pushing the Limits Could Mean the Artist or Designer Could Face Entry Problems Training (B-1 in lieu of H-3) Professional Competitions

O-1 Extraordinary Individuals (Enter the Lead Guitarist) This Category Plays a “Leading Role” for Performance Artists (and sometimes others) Definition: O-1 person is a person who "has extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim”. Extraordinary ability in the arts means “distinction,” “a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered”  “Show me Your Grammy” or Oscar

Persons Who Have Achieved Highest International Recognition Outstanding in at Least 3 of 10 Ways, e.g.,  International Awards (e.g., Nobel, Voice or Musician Competitions)  Awards & Recognized in Multiple Countries  Performed at Prestigious Fora  Top Reviews, Press  Recommendations from Persons Famous in Their Own Right  Commercial Success, High Salary Aim for 6-7, Otherwise USCIS Challenges

O-1 Issues Dual intent recognized -- there is no foreign residence requirement but must be a temporary intent to remain. Consultations/Advisory Opinions -- O-1 petitions in the arts & sciences must contain written advisory opinion from appropriate union, if one exists, describing beneficiary’s ability/achievements in field and duties to be performed. Recommendation letters should be heartfelt Spouses Cannot Work O-2: Support Personnel May Obtain O-2 if:  Are an “integral part” of the O-1’s Performance;  A longstanding work relationship with O-1 Impresario/Itinerary Visas – if O-1 has a U.S. agent

Set III – The Entire Group (All the Supporting Musicians and Staff) H-1B Professional/Specialty Employee Requirements:  Professional or Specialty Occupations, e.g., In-House Personnel  Typically, 4-Year University Diploma, or Equivalent  Experience Counts  “Prevailing Wage” – Employer Must Pay  Cap & Lottery: 65,000/year  20,000 for Holders of U.S. Master’s Degrees  Spouses Cannot Work

P-1 Entertainment Groups E.g., Bands or Touring Company Internationally Recognized But Not Every Individual Performer Needs to be Outstanding Together at Least One Year (75%) Union Consultation Letter Required Can Include “Essential Support Personnel” (the People on the Bus)

F-1 Students & Optional Practical Training F-1: Students in a Degree Program at an Approved University/School Music Students Often Eligible for:  Curriculum Practical Training As Specified in the School Curriculum/Credits  Optional Practical Training (OPT) Valid for One Year Off-Campus Employment Can Act as “Bridge” to Other Categories, Chance to Add to CV

J-1 – Exchange Visitors A Very Useful Category for Younger, Not-Yet-Established Artists Purpose: Gain Experience and Cultural Exchange/Understanding Can Study or Train Often Used with Universities as Partner Independent J-1 training Programs Exist, e.g., BUNAC and AILF

Set 3, Almost Curtain Time – A Twist at the End An Association’s Own J-1 Program Consider for an Association’s Established Training Program or Studio Pre-Approved by the Dept of State for Exchange Visitors  Submit Training/Cultural Plan, etc to DOS for review Registered with Student & Exchange Visitor Info System (SEVIS) Need 5 Participants Annually

A New Character - Designated Official Guitar non-profit Decides Who Gets to be a Star Maximum Flexibility for non-profit in Judging Talent DO Issues the DS-2019 Form for Visa Application Artist Uses to Apply for Visa at Embassy Time Limits per Artist, Usually 2 Years

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