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Expert Testimony

 
  Attorney Linda Rose

Tips for international musicians who want to work in the U.S.

Linda Rose is an attorney and a musician in Nashville, Tennessee. She is the managing member of Rose Immigration Law Firm PLC. Given her firm's location, Rose focuses primarily on immigration issues in the music and entertainment industry. The firm also handles immigration work for international corporate transfers and in higher education.

Rose was elected to a seat as a director of the American Immigration Lawyers Association. She is listed on the bar register of preeminent lawyers, is an adjunct professor of law at Vanderbilt University Law School and has consistently been named by the Business TN magazine among the state's top lawyers. Rose is also a jazz vibraphonist and percussionist and leads a quintet known as Rose on Vibes & Jazz Co. (see www.roseonvibes.com). Rose has attended the Berklee Percussion Festival and traveled to Ghana, Africa, several times to pursue her love of percussion and world music.

Much to the surprise of many music students, musicians, composers, producers, bandleaders, and others in the music industry, U.S. immigration law has a direct impact on them. Generally, for a musician to get paid for work done in the United States, he must have a work-authorized status. Below, Rose shares her insights on immigration options for musicians.

Are there any limitations to Post-Completion Optional Practical Training?

Just to clarify, Post-Completion Optional Practical Training, known as OPT, is authorization for an F-1 student to work, usually for one year, after completing college studies. You must be in possession of an employment authorization card, which takes about 90 days to receive from U.S. Citizenship and Immigration Services (USCIS). Once you receive the card, you must work in your field of study. So for a Berklee graduate, this means working in a music-related job.

Over the past few years, the OPT rules have gotten stricter, but because they are overseen by the international students office or the dean of students office of the school from which the student graduated, there is some flexibility. The general rule is that to qualify the student must work regularly. The student cannot accrue more than 90 days of unemployment during the OPT period. Although periods of up to 10 days between jobs will not count toward unemployment, the student must be careful to avoid long gaps between gigs.

After a student completes OPT, what are the options for staying in the United States?

Those who arrived as international students, usually holders of an F-1 visa, should start exploring their immigration options early if they hope to pursue music careers in the United States. There are several categories of temporary or nonimmigrant visa status available to musicians and individuals in the music-related professions: O-1 Extraordinary Ability, P-1 International Groups, P-2 Reciprocal Exchange, P-3 and Q-1 Culturally Unique, H-1B Specialty Occupation, and J-1 Management Trainees.

I hear a lot about people working on H-1B and O-1 visas. What's the difference between the two?

There's a huge difference between them. The H-1B visa category is for those who have a four-year college degree or equivalent and who will perform a job that requires that degree. USCIS must consider the job a "specialty occupation." A typical example is a person who earns a bachelor's degree in accounting and is hired by a U.S. employer as an accountant. It's not so clear-cut for musicians. Even though the academic study of music is very complex, the immigration service doesn't consider the position of musician to be a "specialty occupation" for which a degree is required. In other words, in the view of the immigration service, you do not have to have a college degree to be a musician. So, earning a degree in music performance from Berklee doesn't qualify you for an H-1B per se.

The H-1B visa category is a perfect fit for other music-related professions, however. Say, for example, you earn a bachelor's degree in music management. This is considered appropriate training for a position with an artist management company. And it might serve as the degree for a musician who will lead and manage his own band.

The O-1 visa category is for "artists of extraordinary ability" and as such has strict and limited applicability. An artist like Elton John would definitely qualify for O-1. But you don't have to be an Elton John to fit into this category. I've obtained O-1 classification for session musicians, backup singers, and "unknown" artists whose popularity and renown are limited to their own countries. It's rare that a recent college grad would qualify for O-1 status, but it's not unheard of. In fact, I've done O-1 visas for Berklee alumni who had graduated only the year prior (at the end of OPT). So don't immediately dismiss this category. Here's how it works.

For O-1, you have to be recognized for your greatness as a musician, composer, arranger, or whatever your area of expertise is. A Grammy Award nomination alone would qualify a foreign musician for O-1. But because it's relatively rare that a person has been nominated for or received a Grammy, a Dove, or a similar music-industry award, the immigration service created an alternative list of criteria.

The simple way to describe the alternative criteria is this: you must be very, very good at what you do, and well known for it. Evidence of national and international awards or of performances at significant venues, reviews in music journals, and recordings listed in Billboard or on relevant music charts are the most common types of evidence needed to establish O-1 eligibility. Then of particular importance are the opinions of experts in the field of music. Usually provided in the form of a letter, these letters must be carefully drafted within the framework of the immigration requirements to document a musician's extraordinary skill and contributions to the industry. Letters of reference may also confirm the significance of any awards or performances. You often need supporting documents, including a nomination letter, photographs, reviews, news articles, tax returns, royalty payment receipts, and publishing or performance contracts. If you haven't thought about it ahead of time, getting these documents can be difficult. I usually recommend that clients get all the documents your mother kept for you.

Once I have an H-1B or an O-1, can I work anywhere I want? And for how long does the visa last?

The H-1B is employer driven, based on a true employer-employee relationship. This means you are sponsored by that employer and you must work for that single employer. The employer must pay the prevailing wage. The H-1B is limited to a total of six years, which can be granted in three-year increments. After six years, the H-1B worker needs to have another visa category in the works, such as permanent residence. Depending on the timing of the permanent residence process, additional H-1B extensions might be allowed. The requirements are very specific, and I discuss potential exceptions with clients based on their individual circumstances.

The O-1 for musicians does not require an employer-employee relationship in the traditional sense, but there must be a U.S. "sponsor" who takes on the responsibility of filing the petition and keeps track of the individual while he is in the United States. The initial petition requesting O-1 status has to identify the various venues where the musician intends to perform and be paid by the various venue "employers," and these venues have to authorize the O-1 sponsor to file the petition on their behalf. It's a bit complicated, but as an attorney, I handle these kinds of matters for musicians and their sponsors. Provided there is an itinerary to support that period of time, O-1 status can be granted for an initial period of three years and can then be renewed in one- to three-year increments. The O-1 is perpetual, so it can be renewed as many times as necessary without limit. If someone is classified with O-1 status, his "essential support staff"-such as a manager, band members, background vocalists, roadies, costume directors, and lighting and sound engineers-can accompany the O-1 artist as O-2 support staff.

You also mentioned P-1, P-2, P-3, and Q-1. What are these categories?

P-1 International Groups can serve as an alternative to an O-1. It can be costly to process an O-1 visa petition for the bandleader, along with an accompanying O-2 visa petition for the entire band, orchestra, performance group, and support staff. And not every group has an O-1 member. Congress recognized this possibility and created the P-1, a slightly less rigorous visa category for bands and groups.

The P-1 visa category covers the entire group. The group, however, must have some international renown and perform abroad at significant venues. Although the members of U2, for example, would likely qualify individually for O-1 visas, it would be impractical to file multiple O-1 petitions when a single P-1 petition would cover the entire group for a short tour in the United States. A drawback to the P-1 is that it is issued in only one-year increments, provided that there is an itinerary to support the one year. But it is, however, like the O-1, renewable without limit.

Now, let's assume that the artist or band is not internationally renowned but wants to develop a career in the United States. An alternative is the P-3 culturally unique visa category. This visa has three basic requirements: (1) an expert opinion that the group is skilled in presenting a culturally unique art form; (2) evidence in the form of reviews, photographs, and/or articles that the group is culturally unique; and (3) evidence that the group is traveling to the United States for a culturally unique performance. This standard is broadly and liberally interpreted by the immigration service, and the visa category provides an excellent option for musicians and artists who are otherwise not eligible for a visa to perform in the United States. A perfect example of a P-3 group would be Ladysmith Black Mambazo, the South African a capella group that sings traditional tribal music.

Another option for those who play culturally unique music is the Q-1 visa. It was created to promote artistic cultural exchange. Artists who demonstrate and teach their unique art form in public settings may qualify for Q visa status. The cultural exchange venue or program must be designed to exhibit or explain the customs, history, or traditions of the artist's home country. An African musician who plans to perform at a cultural community center is a good candidate for a Q visa.

The P-2 Reciprocal Exchange is a bit different. The P-2 visa is useful for musicians who are coming to the United States to perform under a reciprocal-exchange program. To my knowledge, there is only one such program in effect for musicians: the American Federation of Musicians (AFM). Under that program, musicians who are members of the AFM of Canada can request a P-2 classification to tour in the United States.

If I don't qualify for these visas, will working without authorization affect my future immigration applications?

An individual who works without authorization is deemed to be out of status. If you are an F-1 student and you take a job without work authorization, you have violated your status. You could be deported for working without authorization. A more likely scenario is for the F-1 student to seek "reinstatement," but this is granted only in narrow circumstances. This type of status violation can be cured by leaving the country and re-entering on your F-1 visa. But I don't recommend that any student work without authorization just because it can be cured. Once you violate status, you tread on dangerous territory.

I should note that even if you have a work-authorized visa status, you can violate your status. If you are an O-1 musician, for example, but have a side job working in a library on weekends, you have violated status because you have worked without authorization. Your O-1 allows you to work only as a musician. Like the F-1 student, the O-1 musician would have to leave the country and re-enter on an O-1 visa to cure the status violation. And as a side note, an O-1 musician or F-1 student who overstays status can be subject to deportation.

Repeated status violations can certainly affect eligibility for a visa in other categories as well as for permanent residence. Avoid any type of status violation and status overstay. Play it safe. If you're a student, consult with an adviser in Berklee's office of student affairs. If you're about to graduate, consult with an immigration lawyer. The time and financial investment are well worth it rather than facing the consequences of going down the wrong immigration path.