Coming to America: how restrictive and arbitrary immigration laws burden the artistic community.

• Author: Lamberti, Rafael

ABSTRACT

The main focus of this work is to explore the effect that United States immigration laws have on the international and domestic artistic community, particularly since the attacks of September 11, 2001. The economic impact of stricter immigration laws is observed in many industries, including music, film, and fashion. While there has been a candid effort by many legislators to rewrite the laws, little progress has been made, and the application of the laws continues to be highly subjective and capricious. In fact, practitioners in the field often express their discontent towards a largely discretionary system that has offered little guidance to the community as far as the legal standards and burdens that must be met when filing certain petitions. Nevertheless, the goal of both lobbying practitioners and supportive lawmakers is to make the immigration system more accessible and accommodating to the needs of foreign artists while not jeopardizing national security and safety.

TABLE OF CONTENTS

1. INTRODUCTION II. THE ACTS AND THE VISA CATEGORIES A. The 1952 Act and the H-1 and H-2 Visas 1. The H-1 Visa 2. The H-2 Visa 3. Criticism and Need for Change B. The 1990 Act and the O, P, and H-1B Visa Categories 1. The 0 Visa Category a. The 0-1 Visa i. The Original Version ii. Criticism and Amendments b. The O-2 and 0-3 Visa c. Analyzing the Application Procedure Through Case Examples 2. The P-Visa Category a. The P-1 Visa i. The Original Version ii. Criticism and Amendment b. The P-2 and P-3 Visa c. Analyzing the Application Procedure Through Case Examples 3. The H-1B Fall Back Visa a. The Originally Intended Purpose b. As Applied to Fashion Models c. Analyzing the Visa Procedure Through Case Examples C. Changes After September 11, 2001 1. Mandatory Interviews at a U.S. Consular Office 2. Increased Intensity & Scope of Background Checks. 3. Premium Processing III. THE FINANCIAL IMPACT ON THE ARTISTIC COMMUNITY A. Music Industry B. Fashion Industry C. Performing Arts Industry IV. THE SOLUTION A. Legislation B. USCIS Procedural Reform C. Other Models and Proposed Reform V. CONCLUSION I. INTRODUCTION

   For better or for worse, the United States of America (U.S.) is the preferred destination for many immigrants. From the English Pilgrims in the 1600's to the Italian and Irish workers in the 1900's, immigrants have played such an important role in our society that even some of our most beloved fictional characters, like Fievel Mouskewitz and Michael Corleone, have come from immigrant tales. That trend certainly continues today as immigrants play an increasingly larger role in nearly every sector of our economy, adding "a net benefit of up to $10 billion a year." (1) Many of those immigrants find their version of the "American Dream" in the entertainment community, and likewise, the entertainment community welcomes their artistic and financial contribution. In 2011, foreign artists and entertainers accounted for roughly 30% of Grammy Award winners and over 45% of Oscar winners. (2) Not only do they represent a sizeable portion of the industry, but immigrants are also a major source of revenue.

   Nevertheless, stricter U.S. immigration laws pose many barriers to foreign artists' attempts to showcase their talents in the American market. Though national security is undoubtedly the most important and unwavering goal of immigration laws, entertainment industry leaders and practitioners believe that the system does not realistically meet industry demands. To wit, the biggest complaints point to the largely discretionary and arbitrary application of the laws, the harsh procedural requirements, and the unwillingness of many legislators to meaningfully address these issues. From the industry perspective, all of these amount to great uncertainty as to whether foreign artists will be allowed to perform in the U.S., and whether it is worth taking the risk to book their acts. The economic impact of unclear immigration laws is observed across the board, including the film industry, the music industry, and the fashion industry. Still, the goal of the American artistic and entertainment community should be to make the immigration system more accessible to the needs of foreign artists while not jeopardizing national security and safety.

   Part I of this paper will focus on the history and evolution of the Immigration and Nationality Act of 1990 (the "1990 Act"), and will examine how Sections 101(a)(15)(H), (O), and (P) are construed and applied to particular types of petitioners. Part II will expose the detrimental effect that these laws can have on the artistic industry and entertainment industry, both on a creative basis and an economic basis. Part III will elaborate on what is being done to ameliorate these issues, and propose a new approach realistically tailored to benefit the industry while not subrogating the purpose of the 1990 Act. Finally, Part IV will conclude the paper by reiterating the present state of the 1990 Act and how its application is damaging one of the most thriving and notable industries in America.

2. THE ACTS AND THE VISA CATEGORIES

   1. The 1952 Act and the H-1 and H-2 Visas

      Until the last quarter of the nineteenth century, immigration was not a heavily debated topic among the public or the legislature. (3) At a time when most of America was still uncharted territory, the country welcomed immigrants to explore the frontiers and carve the way to a new American society. (4) As America developed its own social identity--largely through the work of immigrants--the sentiments towards immigrants began to change. Starting in 1921, the first codification of quotas clearly demonstrated the intent to selectively keep some people out while letting others in. (5) While the preferential quotas referred mostly to the immigrants' countries of origin, behind them lurked reservations about their race, their morality, and their political ideology. (6) Finally, in 1952, in an effort to control the flow of immigrants, Congress passed the Immigration and Naturalization Act (the "1952 Act"). (7) Although the 1952 Act still focused largely on a quota system, it did take into account certain immigration priorities for both skilled labor and temporary workers. (8) Particular to the artistic community, nonimmigrant artists and entertainers had to apply for an H-1 visa or an H-2 visa before traveling or performing in the U.S. (9) Although much has changed in the H visa since then, this category was, and continues to be, applied to both skilled and unskilled workers coming to the U.S. temporarily. (10)

      1. The H-1 Visa

         Although not specifically created for artists and entertainers, the H-1 Visa category was applied to petitioners of "distinguished merit and ability ... coming ... to perform services of an exceptional nature requiring such merit and ability." (11) In order to establish their eligibility as artists with "distinguished merit and ability," petitioners had to provide documentation showing a "high level of achievement" and "prominence" in their field of endeavor as demonstrated by "sustained national or international acclaim." (12) For the purpose of showing such distinction, the regulations pointed to important determining factors such as (1) whether the petitioner would be performing a leading role; (2) the reputation of the work or group with which the petitioner would perform; (3) the petitioner's past commercial success and salary; and (4) whether the petitioner had received any prestigious awards. (13)

         This category, unlike the H-2 described below, did not focus on the availability of American labor as much as it did on the talent and recognition of the petitioner; thus, it did not require a certificate from a labor organization, nor did it require that the work performed be temporary. (14)

      2. The H-2 Visa

         Originally created for temporary seasonal workers, the H-2 visa nevertheless served as an alternative for those artists unable to meet the prominent distinction required for the H-1 visa. (15) In order to qualify for an H-2 visa, the petitioner had to prove that he or she was coming to the U.S. temporarily to perform jobs for which there were insufficient American workers who were willing, available, and qualified. (16) Further, the petitioner had to obtain a certification from the Department of Labor attesting to such conditions, and also stating that allowing the petitioner to perform the job would not negatively affect the wages of American workers. (17)

      3. Criticism and Need for Change

         The 1952 Act was written with an eye towards protecting American labor and employment, though it did not effectively or realistically address the needs of immigrant artists and entertainers. For those immigrants, the H-1 and the H-2 visa requirements were seen as "severely time-consuming, cumbersome, and too difficult for practical use." (18)

   2. The 1990 Act and the O, P, and H-1B Visa Categories

      As a result of a large increase in illegal immigration, and after nearly a decade of Congressional debate and compromise, Congress passed S. 358, also known as the Immigration Act of 1990. (19) The 1990 Act, sponsored by Senator Kennedy and supported by Senator Simpson and Senator Dodd, was a substantial departure from the strict quota based immigration system, and incorporated a more comprehensive merit and relationship-based approach. (20) As described by President George Bush upon its signing, the 1990 Act represents "a complimentary blending of our tradition of family reunification with increased immigration of skilled individuals to meet our economic needs." (21)

      Divided mostly between family and employment based visas, the 1990 Act seeks to promote family unity while addressing the concerns of U.S. workers regarding cheaper foreign labor and the global economy. (22) More specific to this discussion, as a result of substantial lobbying by entertainment labor organizations and private business representatives, the 1990 Act...