The Thorny Trail to Triumph: Painting and Planning a Visual Artist Visa

Artwork by Carlos Vega



Today I am listing in simple language what is needed to qualify for O-1 artist visa as a visual artist.

We’ll skip the “Einstein” requirement and move on to the alternative list.

Remember, you must fulfill at least 3 categories. Here goes:

1. Awards, prizes and/or commendations granted by art organizations/fairs, etc.;

2. List of galleries where you have shown your work, with proof of the shows (think invitations, email invites, etc.);

3. Articles you have written about fine art that have been published in magazines, newspapers, internet, etc.;

4. Performance as a judge or on a panel of judges of other artists (try to remember if you’ve done this at a university or school);

5. Artist in residence experience;

6. Articles written about you in any form of press;

7. Membership in art organizations;

8. Full portfolio of art work;

9. Position as supervisor of a mural or other large piece where others helped you;

10. Any type of promotional material about you;

11. Radio play;

12. TV appearances;

13. Proof of payment by purchaser of your art;

14. Teaching experience;

15. Letters of recommendation written by experts in the art field and/or;

16. Other similar material.

Show as much as you can to an immigration attorney familiar with fine art. Good luck!

Consular Processing Procedures

Artwork by Jaime Vasquez. - http://www.jaimevq.com/

Now that you’ve gotten your artist visa approved by Immigration, it’s time for  processing at a U.S. Consulate!

First word of advice: Use the U.S. Consulate in the country where you actually live. This would be where your last apartment or home is located.

There is also a provision in the law permitting you to go to any U.S. Consulate -- that will have you.

Whatever you do, consult with your attorney before you go to be sure you have the 2 required forms filled out correctly, two passport photos, a full copy of your file and whatever the U.S. Consulate requests.

After a Consular approval,  the Consulate places a stamp in your passport. You show this to enter the U.S.  Without it you can't enter.

So you were refused...If it’s because of ineligibility (overstay of visa, criminal record, contagious disease, etc.), you may file a form called “Waiver of Ineligibility.”

BUT: If the Consular Officer believes (and he/she has all the discretion in the world) that you’ll never be able to explain away your “Ground of Ineligibility”, your passport will be stamped “Application Received”, along with the date of refusal.

This is not a good thing…

At that point, try another Consulate. Still, you'll have to do a lot of explaining...

BTW: At the end of it all, if you are denied, you may not appeal this decision. Try to go back and attempt to overcome whatever the Consul claimed your problem was…

Can't Call it 'Culturally Unique'?

Artwork by Jaime Vasquez. - http://www.jaimevq.com/

Let me tell you about a recent problem encountered by a client.

A very reputable U.S. venue booked an Argentine band that fuses Jewish Klezmer music with tango. We thought the case was a slam dunk for the “Fiesta Hanukkah” concert.

But that was before immigration checked out the petition and came up with its own new definition of “culturally unique”.

Immigration claimed: “The evidence suggests the group performs a hybrid or fusion style of music... which cannot be considered culturally unique to one particular country, nation, society, class, religion, tribe or other group of persons.”

The owner of the venue was livid. “How more culturally specific can you get than Jewish music of Latin America”?

NEXT WEEK:  "Consular Processing Procedures"

Tax Talk

Don’t have enough to worry about?  

Just when you thought it was safe to go into the water, up floats the issue of taxes and the artist visa.

First consideration:  Who pays the taxes?  Is it the foreigner, the sponsor or someone else?

Most U.S. income received by a foreigner (while on an artist visa), is subject to a U.S. tax rate of 30%. 

If you’re lucky, there’s a tax treaty between your home country and the U.S.  The U.S. has tax treaties which makes foreign artists exempt from U.S. income taxes – with certain limitations and income ceilings. 

If you are eligible for an exemption, you must file Form 8233, “Exemption from Withholding on Compensation for Independent Personal Services of a Nonresident Alien Individual.” See http://www.irs.gov/

This same Form 8233 is needed if your income comes through a foreign or U.S. management agent.

You’ll just love this form:  On it you must list all the visa details from your passport for the last several years. 

If you tour extensively – this can take forever.

More:  You must include your social security number OR furnish a U.S. issued Individual Tax Identification Number (ITIN) on your tax return.  An ITIN can be gotten by filing Form W-7. See http://www.irs.gov/

All of this is simply to ensure you can legally perform in the U.S.

OK, you thought it was difficult enough to put together all the support material.  Remember that the tax issue is a minefield, or you can call it a ‘maze’, if you want to be polite…

COST CONSIDERATIONS

Take into account all of the following expenses when planning to come to the U.S. to perform (so there are no surprises.):

Grant applications;

Contract negotiation;

Planning ‘Artist in Residence’ events;

Renting technical gear;

Technical contract review, negotiation and adherence;

Marketing and promotion;

Reserving rehearsal time at venues;

Hiring page turners, piano technicians, etc.;

Designing programs, flyers, bios, etc.;

Lodging and meals; and/or

Travel to airports and local transportation.

Getting an artist visa is a big expense and so is putting your music out there for the public.  Be practical!

Need more help?

Check out the following websites:

Artists From Abroad, part of the Association of Performing Arts Presenters. See http://www.artspresenters.org/

The American Symphony Orchestra League See http://www.americanorchestras.org/

United States Citizenship and Immigration Services See http://www.uscis.gov/

Internal Revenue Service See http://www.irs.gov/

NEXT WEEK:  "Can't Call it Culturally Unique?" 

Special thanks to Carlos Vega for his paintings that are featured on this blog.

Roll out the Rolaids

THE LOW DOWN ON SPONSORS:

Surprise! YOU cannot file for an artist visa for yourself.

Here’s where the “sponsor” comes in.

Sponsors are absolutely necessary to sign documents prepared by your attorney.

As so many clients have told me, finding a sponsor is like finding a needle in a haystack. So which are the best haystacks to look through?

There are a few options -- a U.S. band manager, U.S. agent, U.S. agent or even a foreign employer acting through a U.S. agent is allowed to be your sponsor.

What about your own company or partnership? It can be your sponsor, as long as it’s a U.S. company or U.S. partnership (related to music) AND there is a U.S. partner OR work-authorized employees. (This means the employees must hold working visas or green cards themselves.)

For most of you musicians, it makes more sense to have an agent or manager act as your sponsor. This gives you freedom to perform where your sponsor wants you to. Most musicians need that kind of flexibility.

From experience I can tell you that plenty of musicians are sponsored by bands they perform regularly with.

Last: The sponsor’s job: A sponsor makes certain guarantees about the terms and scope of the work you intend to do. Have any possible sponsor speak with your attorney about this.

Still confused?

Try asking other foreign musicians with artist visas how they found sponsors…


NOT ONLY METRONOMES COUNT TIME

How long were you hoping to stay in the US on an artist visa?


Relief at last: There is no maximum period for O-1 status. If you want, you can hold an O-1 ‘till the end of time. Not sure how long that would be?

Your first tour of duty can be for up to 3 years. If at the end of the 3 years you need more time here’s how it goes:

For additional time with the same sponsor, there is a one year extension only. If you change sponsors after the first 3 year period, you can have 3 years all over again.

Who wants to keep paying for extensions even with different sponsors each time? Maybe it’s time to think about the artist green card. And that, my musical friends, I’m leaving for another day…

NEXT WEEK:  "Tax Talk."

Special thanks to Jorge Posada (http://www.jorgeposada-art.com) for his painting above "Sponsors" 

and to Kenzo Minami (http://www.kenzominami.com) for his painting included in "Time on O-1 Visas". 

Musicians Play the Immigration Tune

You probably already know that to qualify for an artist visa, the Immigration Service requires EITHER a Nobel Prize, Academy Award, Emmy, Grammy or Directors Guild Award (which I presume most of you readers have not, kudos if you have!)

I call this affectionately the "Einstein" category.

Just yesterday a client told me about another lawyer who said not to apply for an artist visa since the client hadn't discovered the 'Theory of Relativity'.

I've heard this so many times I've lost count.

But this is only half the story.

Guess nobody told these guys that you can qualify for an artist visa another way. Check out if you have three of these items (listed in the practically unreadable Immigration Statutes):

1. Wide national or international recognition;
2. Articles written by applicant in major publications;
3. Participation as a judge or member of a judging panel;
4. Published articles in major publication;
5. Performance in a lead role in an event that has a distinguished reputation;
6. Proof of financial success;
7. Original artistic contribution of major significance;
8. Receipt of a very high salary; and/or
9. Other similar material.

Let see if I can help you out here. Do you have three of these?

1. Awards, certificates, or prizes from music festivals, musical competitions, city agencies, etc.;

2. Articles you have written that are published in magazines, newspapers or on the internet;

3. Acting as a judge of music competitions (maybe you were on a panel judging students at a university or music school);

4. Articles written about you in any form of press;

5. Band leader status;

6. High yearly income (congratulations if you've got that...);

7. Membership in exclusive music organizations;

8. CD's/DVD's & demos;

9. Flyers or other advertisements of gigs;

10. Radio play;

11. Television appearances;

12. Letters of recommendation written by musicians, owners of venues, organizations, etc.;

13. Performance photos;

14. Teaching experience; and/or

15. Other similar material.

Keep in mind every musician is unique and all your accomplishments must be reviewed as a whole by an attorney who understands music. This type of attorney can tell you if he/she believes you have enough for an approval.

After all, you don't want to lay out all that cash if the case is weak. You want an honest opinion about your chances.

By the way -- don't forget to ask your musician friends what they compiled to get artist visas.

NEXT WEEK: "The Lowdown on Sponsors" and "Not only Metronomes Count Time"

Special thanks to Nadia El-Tatawy for her paintings that are featured on this blog.
See her website (http://www.nadiaeltatawy.com/)