In recent months, we’ve seen significant and unreasonable delays for O-1, P-1, and P-3 visa applicants. Many of these applications are taking months longer than they have in the past and are often being receiving ridiculous Requests for Additional Evidence (RFE) and/or being denied without good reason by failing to follow the law, creating unnecessary delays. Applicants run into a brick wall when they try to follow up with U.S. Citizenship and Immigration Services (USCIS).
The O-1 Visa is provided for “Individuals with Extraordinary Ability of Achievement” – these are your athletes, artists, scientists, businesspeople, educators, actors, etc. P-1 Visas and P-3 Visas also provide pathways for entertainers and athletes as well as cultural individuals and groups. Applicants for each of these categories have fallen victim to unreasonable delays and rejections.
Artists from other countries particularly struggle to financially afford the visa process. They also face tight windows of time between starting the visa process and the start of a tour, performance or other event in the United States.
So, what options do applicants have if their visa application is lagging behind or ultimately rejected at no fault of their own?
The first action any applicant should take is to speak with an immigration attorney, especially an attorney that focuses on immigration services for artists, entertainers, and creatives. Your attorney will review any notices from USCI as well as your case file to understand whether or not officials are misapplying, misinterpreting, or completely ignoring the law and ignoring the evidence provided.
Many applicants are self-submitting applications and blaming themselves when government officials are flat-out making shit up and failing to uphold the law. The precedent established by the Administrative Procedure Act and U.S. Code § 706 holds the government accountable for such actions defined as “arbitrary” and “capricious” (which is the legal way of saying “making shit up”). Under the law, while USCIS has wide discretion in a lot of ways, they just cannot make up their own requirements or interpretations.
An attorney review allows you to save money and time. Instead of just going through the process all over again, we are able to review your case and determine the proper next steps.
The best time to reach out to a lawyer is before you file your case. A seasoned attorney will be able to ensure it is properly filed the first time and that the administrative record of your case is adequate.
If you do choose to self-file, the next best time to reach out to an attorney is before you respond to a request for evidence or notice of intent to deny. An attorney can help you determine whether it makes sense to 1) respond, 2) refile or 3) take other steps to help your case.
Did you know your congressional representatives are actually supposed to work for you? They aren’t just talking heads on tv but instead have defined duties to their constituents. One of those duties is to assist constituents when facing difficulties with federal agencies.
In this case, your congressional rep’s job is to help you expedite an application and get in contact with the proper officials to review your situation. They cannot force USCIS to act to approve your pending application, but they can be useful to get information on your behalf, get a case unstuck, address a particularly bad RFE situation after you’ve filed your response, etc. You are able to use an online tool to find your representative and contact information for their office.
In addition to being useful tools to pursue monetary compensation for your suffering, lawsuits can help force the hand of government agencies to do their jobs appropriately under the law. In the case of challenging and just plain wrong USCIS agency action, a lawsuit under the Administrative Procedures Act (APA) or Writ of Mandamus may be the best pathway to the positive outcome you seek. These types of lawsuits take time and cost money, but overall, the time and money spent on a lawsuit may result in a more favorable outcome for either the same or less resources than re-filing or other steps.
If your petition with USCIS seems stuck in processing with no end, a writ of mandamus may be able to break the stalemate and get your visa through the approval process. If your petition is denied on the basis of “made up shit” under the law, an APA lawsui may get your case reopened and evaluated properly, or even approved by the court. These tools are often a last resort but becoming more frequently used by immigration attorneys and their clients to produce results.
If you’re in a bind because your visa is denied or delayed or you just haven’t filed yet and need one soon, you’re forced to pay for premium processing - a $2500 expedited filing fee on top of the regular filing fee you will pay. Expediting your application requires additional fees which you just might not be able to afford – especially if you ultimately get denied.
The best option is to file for a petition for a visa as early as possible to allow yourself time to deal with delays in the process, should they arise. You can file up to one year in advance of the tour or event. This obviously can be a challenge if you’re not at the level of a Taylor Swift or U2 since smaller tours/productions/events do not tend to plan so far in advance. Don’t Delay once you know you will be needed in the US for an event or performance.
Planning ahead and knowing your options when applying for an artist’s visa is necessary to save yourself time and money. Our team is able to assist with the premium processing application, but we advise that clients don’t leave themselves without any other option.
Preparing yourself and understanding that there are resources available should USCIS fail to uphold its lawful duties is imperative in saving you time and money.
Contact Your Virtual Advocate if you need assistance getting through the additional hoops USCIS is forcing some artists, creatives, and entertainers through.
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