Sports and Entertainment Immigration: Coachella is International; Fee Hikes; and a Smattering of Other Points
Welcome back to our little corner of the EASL Journal where we talk about recent happenings in the immigration space. This column has become an area to discuss all sorts of relevant happenings to help us see the impact of these items. Without further ado, let us dive in!
Coachella Returns and It Is Fantastically International
In an article published in Variety on March 24, 2023, Piers Henwood vented about the issues impacting international musicians, noting two specific areas of contention: taxes and immigration.1 Piers Henwood “is a Grammy- and Juno-nominated manager and musician. He was the 2021 recipient of the Music Managers Forum ‘Honour Roll’ award in Canada, recognizing outstanding career achievement in artist management. Past and present management clients include Tegan and Sara, Bedouin Soundclash, Buck 65, Jets Overhead, and Astrocolor.”2 Henwood certainly seemed like someone who has ample experience and acclaim within the industry, such that he likely knew-a-thing-or-two-about-a-thing-or-two, as we say.3 Well then, let us see what Henwood had to say:
What surprising thing do more than half of the acts booked at the 2023 Coachella festival have in common?
Unless they comply with burdensome, expensive, and exploitative administrative requirements, they would be barred from entering the United States to perform, and would have 30% of their payment siphoned off at source.4
That lays the foundation quite firmly. He also said: “Why? Because 52% of the artists at this year’s Coachella hail from countries outside the United States, including 56% of the top-billed performers. The Department of Homeland Security (DHS) inexplicably treats foreign musicians like a potential threat to the republic, while the Internal Revenue Service (IRS) treats foreign musicians like a slush fund. And this has been true for decades, regardless of the political party in power.”5
As I am by no means an expert or any semblance of authority on tax codes, rules, or regulations, I am going to ignore that aspect here—although I am sure that plenty of you reading this will know whether Henwood is correct—what is notable is that “the U.S. Citizenship and Immigration Services (USCIS) has recently proposed a 250% increase in fees for work permit processing for entertainers. When combined with necessary legal fees (particularly when tied to the “O” class of visas), the typical cost of a work permit for foreign musicians and crew can already land between $5,000 to $10,000 depending on the timeline required for processing. A further increase may not be an issue for famous Canadians like Drake or Justin Bieber, but for other classes of artists it’s an existential threat to their touring business in the U.S. – especially when combined with the 30% foreign withholding tax on gross income, which can only be avoided by yet another burdensome administrative process via a Central Withholding Agreement (CWA) with the IRS.”6 However, here I am an authority, and can confirm that Henwood’s figures are correct. The range is more along the lines of $5,000 to $13,000 in the majority of instances; but nonetheless, the proposed increase—which we will be discussing in the next section—assuming it is implemented, will be significant and have an outsized impact on independent artists.
What is most noteworthy, though, is the dichotomy here: non-U.S. artists, in most instances, must obtain a visa to perform for even one set within the United States, whereas should an American aim to perform similarly in the EU, a work visa is not required. Of course, there are some nuances that could adjust these statements, but they are generally true. As Henwood puts it, “This asymmetry between the U.S. and its closest cultural allies is stark and indefensible.”7
USCIS Fees Go “All the Way Up!” and Tell Us: “Nothing Can Stop Me, I’m All the Way Up!”8
If DHS has its way, a wide range of fees will be increasing by double or triple digits, with the O visa fee jumping from $460 to $1,055 (a 129% increase), and the P visa fee jumping from $460 to $1,015 (a 121% increase).9 I highlight these because they are the most applicable to the sports and entertainment sectors, although the L visa would also be applicable from time to time (for individuals who are being transferred from one office outside of the U.S. to an office within the U.S.) and would jump from $460 to $1,385 (a 201% increase).10
Now, there is not much to write about this yet, because nothing is set in stone, but should these fee hikes go into effect, there are going to be huge negative repercussions for folks within live performance, such as theater, dance, and the like, as well as independent film, television, and music, where budgets are not large, and individuals save up for years in many instances just to be able to afford the entirety of the process now. By more than doubling the fee, with premium processing already at $2,500, this would mean that the filing fees alone would reach $3,555. Add on a labor consultation opinion from a third-party source, such as the American Federation of Musicians (AFM) or the American Guild of Musical Artists (AGMA), and it is now at $4,000. None of this is to account for the legal fees, which range from $5,000 to $12,000 in most instances, making an O visa petition cost upwards of $16,000 in fees alone.
So, what will happen to the performing arts fields and unorthodox or lesser-known sports competitions? What about the more non-traditional art forms, such as tattoos (for which some of the best artists around are from outside of the U.S.)? Needless to say, they will be stunted significantly, and painfully stifled, if not cratered. The best thing we can do in this instance, is to contact our Congressional Representatives about the matter: it is not slight, and if it goes into effect any time soon at the proposed rates, we are bound to see a whole lot less of the international talent we have all come to know and love.
A Hodge-Podge of Information
Recently, the world of sports and entertainment immigration has not been making the news. Various visa issues and delays have impacted folks from soccer,11 e-sports, baseball, and hockey,12 but there is not anything new about that. The rate of requests for evidence (RFEs) has increased significantly in my experience and from what I have been seeing, along with an array of confused and perplexing decisions from USCIS. The U.S. southern border may become a hot-button issue once again with the expiration of Title 42, “the public health law that permits the U.S. to deny asylum and migrations claims for public health reasons.”13 The expectation is that there will be a substantial increase in the number of individuals attempting to cross the southern border and that, as a result, despite some-18 months of planning, the best that could be done was to send active-duty military in the National Guard to assist Customs and Border Protection (CBP)14 and open up visa processing centers in Latin America.15 What is seemingly great here, is that, “Interviews will be done exclusively by U.S. Citizenship and Immigration Services, not by Border Patrol agents, and everyone will have access to legal counsel.”16 Ultimately, time will tell whether any of these measures work or if they are painful failures. In the end, though, it seems that the Biden Administration is doing something, or at least making an attempt to do something, positive . . . let us hope that it can get support to fix this broken immigration system somehow, in some way.
Michael Cataliotti is the Principal of Cataliotti Law P.C., a law firm concentrating on business immigration and international corporate transactions. His clientele includes individuals and entities from such industries as sports, music, fashion, film, television, art, theatre, new media, and technology. Michael is a faculty member at Lawline CLE; a frequent speaker on the topics of business immigration, corporate transactions, and entrepreneurship; a member of the American Immigration Lawyers Association (AILA) where he is an active participant on several committees; a Super Lawyers’ “Rising Star,” and a board member of Dance/NYC. Michael is also listed in Chambers USA’s ranking as an “Up-and-Coming” attorney in the field of Immigration in New York.
Endnotes
4 Henwood in Variety, supra fn1.
8 https://genius.com/Fat-joe-and-remy-ma-all-the-way-up-lyrics.
13 https://www.politico.com/news/2023/05/02/1500-more-troops-southern-border-00094850.
15 https://www.politico.com/news/2023/04/27/biden-migrant-processing-centers-latin-america-00094151.
16 https://scrippsnews.com/stories/us-readies-second-attempt-at-speedy-border-asylum-screenings/.
