Help!The Play Date is Booked – What about a Visa?The Merry Confusions of U.S. Immigration Law

Presentation forGuitar Foundation of America

2010 International Convention & PresentationAustin

June 23, 2010

James D. PrappasPartner

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 StoryCurrent 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

CURTAIN

[Applause]

Questions?

Contact Information:

James D. PrappasJackson Walker L.L.P.1401 McKinney Street, Suite 1900Houston, Texas 77010713.752.4298 Direct dial713.308.4151 Direct faxjprappas.jw.com@jw.comwww.jw.com

Curtain Call

[& More Applause]

[Ad Infinitum ……..]