immigration

Proposed Fee Increase for Artist Visas Threatens International Cultural Exchange

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Image by Ahmad Ardity from Pixabay

By: Smitha Gundavajhala

On Thursday, February 12, the Seattle Symphony opened its doors for a three-day run of Beethoven’s Symphony No. 6. For weeks, the symphony had advertised that soloist Carla Caramujo would take the stage for the performance. However, as opening day approached, the Symphony had a change of plans. The web page for the concert displayed a message: “Due to delays with artist visa processing, soloist Carla Caramujo is regretfully unable to perform on this program.”

Delays in artist visa processing have prevented international artists from making their scheduled performances in the United States, and deprived American audiences of valuable opportunities for cultural exposure and exchange. As Tom Davis, a former Chairman of the Committee on Government Reform, said in an April 4, 2006 hearing on the impact of visa processing delays, “the American cultural scene will continue to remain vibrant only as long as foreign artists are able to bring their work to American stages and galleries.” This blog will explore a history of delays in processing the artist visa, a proposed rule to increase the efficiency of visa processing, and the implications of that rule for cultural exchange.

Delayed Artist Visas: A History

The term “artist visa” actually refers to two kinds of visas: O visas and P visas. O visas are for artists who are coming to the United States for longer terms, and P visas are for artists who are staying only temporarily to perform. Petitions for O and P visas are reviewed by the United States Citizenship & Immigration Service (USCIS). Under the Immigration and Nationality Act (INA), the statute that created USCIS, O and P visa petitions must be processed within 14 days (8 U.S.C. §1184 (c)(6)(D)).

USCIS has struggled to meet this processing time for decades. Art advocacy groups have traced the delay to 2001, when USCIS implemented a Premium Processing Service (PPS) that would guarantee visa processing in 15 calendar days for artists who paid a $1,225 fee. Similar to the creation of express lanes on highways, the PPS option created “traffic” for applicants who could not pay the fee: the processing time for applicants was an average of 45 days before PPS, and extended up to 6 months after PPS. In 2010, the Department of Homeland Security (DHS) adopted a rule that committed USCIS to meeting the day processing time required by the INA.

In 2019, Congress passed the USCIS Stabilization Act (HR 8089), a piece of emergency legislation intended to address processing delays, in part by increasing the PPS fee. The USCIS Stabilization Act allowed DHS to suspend the use of premium processing if circumstances prevented the timely processing of petitions. However, despite consistent delays in processing, DHS has not suspended premium processing. Today, the PPS fee costs $2500, and artist visa delays continue to accumulate.

When President Biden took office in 2021, the Biden administration faced the task of reducing backlogs in visa processing times that had been deepened by Trump-era policies. That is where DHS’s proposed rule comes in.

The Proposed DHS Rule

The Department of Homeland Security is proposing a rule that would increase the cost of applying for an O or P visa by more than 250 percent. O visa fees would increase from $460 to $1,655, and P visa fees would increase from $460 to $1,615. DHS justifies the fee increase by citing high demand and insufficient staff in USCIS. The fee increase, along with an increase in the required processing time from 15 calendar days to 15 business days, is intended to provide USCIS with more funding, staff, and time to catch up with the backlog in processing O and P visa petitions. 

DHS’s authority to propose and promulgate this rule comes from the Immigration and Nationality Act — in particular, from the section on the “disposition of moneys” (8 U.S.C. §1356). Administrative agencies like DHS have the power to propose and enact rules to carry out the objectives stated in statutes that the agencies administer, like the INA. If the rule is adopted, it adds an additional layer of requirements to the statute that must be met along with the base requirements of the statute itself. Agencies must provide the public with a Notice of Proposed Rulemaking (NPRM) and allow the public an opportunity to comment before adopting a rule.

The proposed fee increase for artist visas sits within this unassuming administrative framework. Members of the public are often unaware of the existence of NPRMs and uninformed on how to comment. In addition, even though anyone can submit a comment, many of the stakeholders impacted by this proposed rule do not live in the United States, and are unlikely to be aware of the opportunity to comment on the rule.

Implications of the Rule

After the Biden administration committed to reducing processing times, it followed through by approving a $389 million budget for the 2023 fiscal year to support that effort. It is unclear whether that added funding is actually being used to improve processing times. DHS is still passing costs down to artists, and if the rule is passed, those costs will only increase.

The current framework for O and P visa petitions is already inequitable: those without the resources to pay a $2500 PPS fee are impacted by visa processing delays, and risk losing out on opportunities to perform. Independent artists and non-profit organizations are particularly impacted by this inequity, and are likely underrepresented in international cultural exchange. However, the current processing fees are lower than the proposed fees, so despite processing delays, artists currently have greater access to petitioning than they would under the new rule.

If the rule is adopted and implemented, DHS may or may not catch up with the backlog in O and P petitions. However, the cost of applying for an artist visa will increase, and the pool of artists that are able to apply for and obtain visas will skew in favor of those wealthy enough to absorb the fee increase. One thing is certain: adopting the rule will cause the United States to lose out on a great deal of talent, and cultural exchange is likely to suffer. 

DHS is currently accepting written comments on this proposed rule until March 6, 2023. The electronic Federal Docket Management System will accept comments before midnight eastern time at the end of that day.

The Immigration Non-Cooperative?

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USA_passport_with_immigration_stamps_from_Austria,_Germany,_Singapore_and_the_US_-_20120708

By Ari Mead

Local governments across the country fought federal immigration policy under Obama. Under Trump the fight continues. Specifically, the President has directed federal immigration agencies to more aggressively enforce current immigration laws and prevent residents with legal documentation from entering the United States based on country of origin.

But, for the first time, states are adopting state-wide policies that attempt to prevent cooperation with federal immigration policies.

The following is an overview of what’s happening:

CALIFORNIA

Several members of California’s legislature have responded with two proposed bills, which aim to protect immigration status, national origin, and religious belief from getting into the hands of federal officials.

Current California law requires that when state or local law enforcement arrest someone they believe is not a citizen, they must report that individual to the federal government. SB 54 would repeal that provision. In addition, the bill prohibits state and local law enforcement agencies, along with other state agencies – including schools – from using any local resources for immigration enforcement purposes. Sb 54 also directs state agencies to adopt the confidentiality policies that the Attorney General defines.

Another proposed bill in California, SB 31, requires state agencies to secure databases containing names, places of birth, addresses and nation of origin. Additionally, the bill disallows California from creating any databases that compile personal information.

WASHINGTON

On February 23rd, Washington State beat California lawmakers to the punch, as Washington’s Governor Jay Inslee signed an executive order blocking state officials and agencies from cooperating with federal immigration raids, sharing private information in agency databases or creating any religious based databases. Although city level non-cooperation policies have existed for decades, these state-wide non-cooperation policies are the first of their kind.

FEDERALISM CHALLENGES

Meanwhile, city non-cooperation policies have been around and have been tested in court, shedding light on some of the legal issues they pose. City of New York v. United States, from the United States Court of Appeals of the Second Circuit, concerned a provision in The Welfare Reform Act that prevented localities from prohibiting their local law enforcement and other agencies from sharing information with the federal government. The City of New York challenged the provision as violating the Tenth Amendment, and argued that the federal government could not interfere with how it instructed their local employees outside of a federal agency. Ultimately, the Tenth Amendment prevents congress from passing laws requiring states to administer civil immigration law. The Second Circuit decided that in the face of federal policy requesting cooperation, a city policy cannot prevent an official from voluntarily sharing immigration information. At the same time the ruling from the Second Circuit does not discuss whether a federal policy could require a state agency or city official to obtain information to report to the federal government.

Another case that considered the legal issues imbedded in non-cooperation policies was Sturgeon v Bratton. Sturgeon, a Ninth Circuit Court of Appeals case, involved an LAPD policy called S.O. 40, which stated that obtaining immigration information was not a matter for local authorities. A group of citizens challenged the policy as unconstitutional, arguing that that federal immigration law preempted the city policy. The Court of Appeals disagreed and said that the Tenth Amendment “shields state and local governments from the federal government requiring them to administer federal civil immigration law.”

In the months and years to come, more courts will likely have plenty of opportunities to decide whether state non-cooperation policies are also shielded by federalism. Whether states themselves are shielded by federalism depends on the federal government’s actions moving forward. The federal government could limit funds tied to immigration, or test the Tenth Amendment in this area again, challenging state laws that prevent local authorities from acting to enforce immigration laws.

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