Think Immigration: Add that to the Tab – Rising Costs to Tour the United States

2/27/24 AILA Doc. No. 24022703.

Touring as a musical artist in the United States and making a profit (or breaking even) is that much harder post-pandemic. Artists’ profits are drastically shrinking due to larger financial cuts from record labels, the venue, promoter, etc. For example, some venues now request a cut of merchandise sales or do not share alcohol sales. Depending on ticketing affiliation, a venue may add ancillary ticket fees, but the artist is not seeing a cut. On the logistics front, transportation and fuel costs have increased.

International artists face another barrier: a U.S. work visa. The O or P visa are commonly used for musicians. They are each limited to specific purposes and not a substitute for a green card. An artist may even have multiple O visas depending on their overall activities in the United States. Both O and P visas can be labor intensive depending on the musical genre, profile of band/artist, nature of the arrangement, and timeline. Like any U.S. visa, there are associated filing fees and attorney fees but, unlike the H-1B work visa, the O or P do not mandate the sponsor/employer pay all legal or government filing fees.

And now, touring is getting even more expensive. On April 1, 2024, the new fee schedule from the U.S. Department of Homeland Security will take effect. Applications for most work visas and employment-based green cards will now have higher filing fees and require a new mandatory asylum fee ranging from $300 to $600 (non-profits are exempt). This new fee will be used to fund part of the costs of administering our nation’s asylum program and will be paid each and every time an O or P visa is filed (side note that it is possible that the final fee rule will be challenged in court and all or part of the new fee rule may be enjoined).

The current O and P visa filing fee of $460 will now range from $510 to $1,055 depending on the type of visa and sponsor/employer in addition to the asylum fee ($0-600). At most an O visa would require $1,655 for filing fees. The expedite service, premium processing, is an extra $2,805, which would then bring the final filing fee to $4,460. Premium processing times are also being extended, requiring adjudications in 15 business days versus the previous 15 calendar days.

Despite these fee increases, it is unlikely the government will engage with stakeholders, improve customer service, or enhance immigration officer training to yield consistent adjudications and less frivolous challenges. The government still does not have the means to process O or P visas online, thus attorneys must continue to mail in large stacks of paper exhibits and wait for an approval notice sent by U.S. Postal Service. In sum, more money for less service.

It is not just touring artists that will be financially impacted by the fee increases. The new fees also impact those in academia or creatives who span a few fields. Here’s a hypothetical: Jane Doe is a professor and has two O visas (state university and an agent). Jane will now have an asylum fee for her agent’s O (the university is exempt from the asylum fee), two visa application fees (total cost varies), and of course attorney fees. Similarly, John Doe is a visual artist who has three O-1 visas (main job, agent, and part-time job). It is possible John could be paying nearly $5,000 in government filing fees due to the higher fees and the asylum fee.

While we all understand that Homeland Security should increase fees to keep up with operational needs, the new fees are a bandage on a larger issue – proper funding and allocation of resources. The asylum system must be funded adequately by Congress, but not at the expense (literally and figuratively) of other visa categories. The new fees place additional constraints on artists/performers not backed by a major record label or with independent financial support. In sum, the visa costs will be a larger factor when calculating U.S. tours.

Music is a universal language that binds and connects us all. Requiring performing artists to help fund the U.S. asylum system does not send a welcoming message. Placing the cost of asylum on other foreign nationals sows division and perpetuates harmful stereotypes. Not every entertainer is wealthy and not every asylee is poor. We are long overdue for a modern immigration system instead of one which is both increasingly more expensive and less effective.

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