Update on Adjudication of Artist Visas and Green Cards

Current as of 2018 - for recent updates please contact our office.

Like everyone else, we have seen -- and continue to see -- some changes in the adjudication of Visas and Green Cards in the last year. There have been new, burdensome rules put into place, like new interview requirements for Employment-based Green Cards, and some important standards for case review (like the presumption in favor of renewals) have been rescinded. We are also seeing a rise in Requests For Evidence (“RFE”s) which sometimes ignore the applicable standard of proof and questions which can seem facetious.

These were detailed in a recent podcast of “This American Life” called, “Let Me Count the Ways” (Episode 656). The podcast identified a few choice questions asked by recent RFEs:

  • An RFE that questioned whether the Archdiocese of San Antonio, Texas, the 2d largest Archdiocese of the Catholic Church in the United States) is a functioning business.

  • Another RFE asked a British citizen to have her British birth certificate translated into English.

  • An RFE which questioned whether an architect needs a specialized degree to be an architect.

We have seen similar questions going to the heart of the process. In our own office we have recently seen RFEs in O-1 cases which question whether an Editor or a Director of Cinematography (DP) is a key role in a film’s production and whether the Costume Designer or the Sound Designer is a key role in a theater production. Questions of this kind are entirely new. In the past, the critical, leading role of these kinds of artists was viewed by the USCIS’ Adjudicating Officers as established, as it is seen in the industries in which each works. We are now finding ourselves weighing down Petitions with evidence confirming the leading role of Directors, Set Designers, Lighting Designers, Sound Designers, Costume Designers, Playwrights, Composers, as well as actors in theater, film, dance and opera.

We are also seeing RFEs which question whether future productions by the leading theatrical and opera companies in the United States meet the definition of "distinguished", since they have not yet occurred. These all ignore legal standards of proof, established norms of adjudication and evidence carefully submitted which meet the applicable standards, and reflect growing hostility at the Immigration Service. While many cases are still adjudicated under established standards, too many seem to be handled by people who seem unaware of the standards of the law they are empowered to adjudicate and uninterested in the evidence submitted. As a result, there is a random application of the standards in many kinds of cases, and that violates everything that America stands for. The luck of the draw should have no place in this process.

We do not know whether what we are seeing is a fundamental change in the Immigration Service. The Adjudicating Officers of the Immigration Service do very difficult work, often with insufficient training and support. In the past, despite very challenging and chaotic circumstances, including woefully insufficient training, the Adjudicators worked hard to protect the rule of law, on the whole. We certainly hope to return to the standards in effect in the past.

Where does this leave us? We know that even in the best of circumstances, applying for a Green Card or Visa is extremely stressful. It is beyond difficult to ask your colleagues, collaborators and employers to spend their time and money to support your case. Now, it is even more difficult, since there is increasing fear that the process of applying for a visa or green card significantly involves a hope of receiving a “good read” from an adjudicator.

At Dyer Harris LLP, we want clients to know that we have redoubled our commitment to you, for the long term. These may be difficult times, but they will not last. With creativity, legal know-how, and personal commitment, we hope to find ways to help each of our clients ride out this storm, and pursue their dreams. To the extent that life and work in the United States is a part of that dream, we hope to help make it a reality. We are encouraging everyone to see what is happening as a moment within a long continuum. Taking the long view, let’s see what we can do together.

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