O and P Visas for Nonimmigrants and the Impact of Organized Labor on Foreign Artists and Entertainers and American Audiences

Fordham Intellectual Property, Media and Entertainment Law Journal Volume 4 Volume IV Number 2 Volume IV Book 2 Article 2 1993 O and P Visas for Nonimmigrants and the Impact of Organized Labor on Foreign Artists and Entertainers and American Audiences Tibby Blum private practitioner Follow this and additional works at: https://ir.lawnet.fordham.edu/iplj Part of the Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation Tibby Blum, O and P Visas for Nonimmigrants and the Impact of Organized Labor on Foreign Artists and Entertainers and American Audiences, 4 Fordham Intell. Prop. Media & Ent. L.J. 533 (1993). Available at: https://ir.lawnet.fordham.edu/iplj/vol4/iss2/2 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Intellectual Property, Media and Entertainment Law Journal by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact . O and P Visas for Nonimmigrants and the Impact of Organized Labor on Foreign Artists and Entertainers and American Audiences Cover Page Footnote The author gratefully acknowledges the invaluable collaborative assistance of Stefanie Syman, whose energy and diligence underlie every aspect of this Article. The author also acknowledges the contributions of Marybeth Fahey, a student at Fordham University School of Law, and Thomas J. Biow, Esq., who assisted in the preparation of this Article. This article is available in Fordham Intellectual Property, Media and Entertainment Law Journal: https://ir.lawnet.fordham.edu/iplj/ vol4/iss2/2 0 and P Visas for Nonimmigrants and the Impact of Organized Labor on Foreign Artists and Entertainers and American Audiences Tibby Blun INTRODUCION The influence of immigration law on the entertainment industry demonstrates the simultaneously far-reaching and prosaic effects of legislation enacted to control the flow of aliens into the United States. Many foreign musicians, artists, and entertainers have performed at American venues and jump-started their careers as a result of access to American fans and media. Recent changes to the laws governing the entrance of nonimmigrant artists, entertainers, and athletes into the United States, however, may make this formerly unremarkable phenomenon an exceptional event. Under the Immigration and Nationality Act of 1952 ("INA"), foreign artists, entertainers, and athletes entered the United States with an H-lB work visa, which is granted to nonimmigrants of "distinguished merit and ability."2 Under the Immigration Act of 1990 ("IMMACT" or "1990 Act"), Congress redefined the H-lB visa to cover only nonimmigrants with skills in a "specialty occupation." 4 IMMACT established new classes of temporary worker * Private practitioner specializing in immigration and naturalization law; Hunter College, B.A. 1967; Brooklyn Law School, J.D. 1970. The author gratefully acknowledges the invaluable collaborative assistance of Stefanie Syman, whose energy and diligence underlie every aspect of this Article. The author also acknowledges the contributions of Marybeth Fahey, a student at Fordham University School of Law, and Thomas J. Biow, Esq., who assisted in the preparation of this Article. 1. Pub. L. No. 82-414, 66 Stat. 163 (1952) (codified as amended in scattered sections of 8 U.S.C.). 2. Id. § 101(a)(15)(H)(i), 66 Stat. at 168. 3. Pub. L. No. 101-649, 104 Stat. 4978 (1990) (codified as amended in scattered sections of 8 U.S.C.). 4. Id. § 205(c), 104 Stat. at 5020. 534 FORDHAM INTELL. PROP., MEDIA & ENT. L.J. [Vol. 4:533 visas, 0 and P, for nonimmigrants who had previously qualified for the H-1B visa on the basis of distinguished merit and ability.5 When proposed, the new classifications sparked a heated debate between organized labor, whose interest was protecting American jobs, and the entertainment industry, which wanted to preserve its creative independence. The debate prolonged implementation of some of the proposed changes for over a year.6 The United States Immigration and Naturalization Service ("INS") has insisted that the new criteria for artists, athletes, and entertainers under the 0 and P categories does not differ from the former standards of the H-lB visa category.7 However, the new categorical requirement under IMMACT for an advisory opinion to the INS from a labor union complicates the process of obtaining a visa for foreign artists and entertainers, and leaves qualitative, subjective decisions (i.e., the artistic and cultural value of the performances) in the hands of organizations that have purely quantitative concerns (e.g., the number of American jobs lost to foreign performers). Thus, the evidentiary requirements of the new 0 and P categories, which are more rigorous than those of the former H-lB visa category, will likely prohibit innovative, but less widely recognized, foreign artists, who challenge conventional definitions of artistic merit, from performing in the United States. By enlarging the role of organized labor in the adjudication for visa petitions of foreign artists and entertainers, the 0 and P visa categories may further constrict the number and variety of aliens in the arts who may enter the United States. This Article examines the likely effects of the new 0 and P8 nonimmigrant visa categories upon foreign artists and entertainers. 5. Id. § 207, 104 Stat. at 5023-26. See PROGRAM EVALUATION AND METHODOLOGY DIVISION, U.S. GENERAL AccoUNTING OFFIcE, PUB. No. GAOIPEMD-92-17, IMMIGRATION AND THE LABOR MARKET: NONaMfIaRANT ALIEN WORKERS IN THE UNITED STATES (1992) (discussing temporary workers and the changes made by the 1990 Act). 6. See generally INS Revised H, 0 and P Regulations, 69 INTERPRETER RELEASES 442-44 (Apr. 13, 1992). 7. See infra notes 57-60 and accompanying text. 8. Although nonimmigrant scientists, educators, and business people also may fall under the 0 visa category, this Article will focus exclusively upon entertainers, artists, and athletes. 19931 0 AND P VISAS FOR NONIMMIGRANTS Part I briefly outlines the legislative and regulatory history of HIB, H-2B, 0, and P nonimmigrant visas. Part II discusses the current procedures for obtaining 0 and P visas. Part III analyzes the practical concerns and policy implications of the new regulations. This Article concludes with proposals that would alleviate the problems created by the new 0 and P visa categories. I. BACKGROUND ON NONIMMIGRANT VISAS FOR ATHLEm, ARTISTS AND ENTERTAINERS Generally, all foreigners must obtain a visa issued through the U.S. State Department by the U.S. Consulate to enter the United States.' However, the issuance of a visa does not assure entrance; under INS regulations, aliens must also apply for admission at a port of entry into the United States.' ° The INS, a branch of the U.S. Department of Justice, has juri (...truncated)