Crossing The Thickest Line
Is It Harder Now to Get Artist Visas?
By Urvija Banerji
The French-Moroccan playwright Mohamed El Khatib was apprehensive about traveling to the United States to perform his one-man show, “A Beautiful Ending,” which opened the French Institute Alliance Francaise’s Crossing The Line Festival last Saturday. The first two times he’d come to New York, passing through border control had been “a nightmare,” he said in an interview an hour before the performance. On his first visit, a week after 9/11 2001, he’d been held for questioning at the airport for seven hours. On his second trip, in 2014, traveling as part of a group of French artists, all the others sped through the airport, while El Khatib — with his Muslim name and stamps on his French passport from Morocco, where he has visited relatives, and from other Arab countries, where he has toured with his shows — was interrogated for six hours. Knowing about the Trump administration’s Muslim ban and general anti-immigrant rhetoric, El Khatib expected his entry this year to be even worse.
Instead, “This was the first time I passed through very quickly, smoothly,” El Khatib said, smiling.
A general anxiety around visas and border control has sprung up in the wake of the Trump administration’s vocal opposition to immigration, and for the most part, these sentiments appear to be corroborated by the falling numbers of foreigners traveling to the United States in the last two years. But visiting artists, like El Khatib, seem exempt from this tendency, at least ostensibly. According to statistics released by U.S. Citizenship and Immigration Services (USCIS), the number of approved student visas (F1 visas) fell from 644,233 in 2015 to 393,573 in 2017. There were 7,199,807 approved visas for short-term business or pleasure trips (B1/B2 visas) in 2015 and only 6,276,851 in 2017. Prior to 2016, approvals had been steadily increasing for both visas. Approvals for other visa types have either remained steady over the last two years or seen similar drops.
The only exceptions are the two visa types typically used by artists entering the US for events and festivals, and which FIAF uses to bring artists over for Crossing The Line: the P1, which grants temporary work authorization to athletes, artists, and entertainers so that they can participate in particular events, and the O1, which provides the same to non-immigrant visitors of extraordinary ability or achievement in the arts and other areas. The number of both types of visas granted has gone up in the last two years: from 13,865 O1 visas in 2015 to 17,011 in 2017, and from 24,262 P1 visas in 2015 to 24,932 last year. Artists visiting the United States for only one or two performances file petitions for the same visa used by foreign artists who will reside in the US for up to three years.
According to Elizabeth Skjærvold, Crossing The Line’s event producer, who worked on all the visa petitions for the festival this year, FIAF typically applies for the O1 for well-known artists, especially those who travel with only a few additional performers and technicians, and the P1 for larger companies. All artists, regardless of country of citizenship, were approved for visas for Crossing The Line this year, including El Khatib. But not always on the first shot. “I’ve never had a lot of problems with artists going to the embassy or going to the consulate for their interview,” said Skjærvold, “but I did this year.” One artist was denied a visa at his embassy interview with no explanation, Skjærvold said. The artist eventually went back to the embassy with documents showing his intention to return to his home country, such as contractual work scheduled for after his return date.
Syhem Belkhodja, a choreographer from Tunisia running a workshop with New York dancers and presenting the results at Crossing The Line this year, was also denied a visa at her interview. Embassy officials in Tunisia told her she needed the original visa petition, when usually, copies are accepted. “That’s never happened before to me ever,” said Skjærvold, who has been at FIAF for the past year, and previously worked on artist visas at other organizations. Covey Law, the firm FIAF employs to file the petitions, sent the original documents to Belkhodja and filed a complaint with USCIS. Ultimately, the visa was approved.
The laws governing O1 and P1 visas were written in the early 1990s with input from labor unions, and were intended to protect American jobs, according to Will Spitz, an attorney at Covey Law. But the application process became more difficult than Congress or unions may have intended, Spitz added, and has become even more burdensome during the Trump presidency. “The administration has this ‘Buy American, Hire American’ policy, and it is affecting the artist visa process. We’ve seen a slight uptick in the number of requests for evidence,” he said, referring to the materials applicants must include to demonstrate their bona fides. According to Fiona McEntee, national spokesperson for the American Immigrant Lawyers Association, “anti-immigrant mentality kind of permeates down through every level of anyone who has anything to do with visa adjudication” and makes the process more arduous than it has been in the past.
Even when a visa process goes well, the anticipation of complications can alone have an impact on artists’ desire to come to the US or the willingness of arts organizations to invite them, said Simon Dove, co-curator of Crossing The Line. “There are some [performance] spaces, for instance, that don’t want to take the risk of booking an artist, promoting it — because, you know, here they plan the whole season — they don’t want to commit to a project where the artist doesn’t yet have a visa and there is uncertainty,” he said.
If the application process has become more demanding and uncertain, what accounts for the uptick in O1 and P1 visas? McEntee, who specializes in artist visas, pointed out that while arts industries tend to use the O1 visa extensively, it can also be used by people in business or science, or by entrepreneurs. “Maybe the lack of other options for those people might be part of the picture in relation to the increase in the O1,” she said.
Spitz offered a similar theory. “H1B applications, for example, are capped,” he said, referring to the visa which allows US companies to hire foreign workers in specialized fields. “The O1 is certainly a difficult visa classification to obtain, but every year there’s more H1B applications than there are spots. So I think US companies and immigration attorneys are turning to the O1 as an alternative to other visa classifications.”
The increase in O1 and P1 approvals might also be accounted for by an increase in applications. “I know [artists] that come in without visas, they’ll arrive on ESTA, and just say that they’re here for a personal visit,” said Skjærvold, referring to the visa waiver program that allows visitors from specific countries, mostly European, to enter the United States for business or pleasure without a visa. “However, I think that’s scarier now. People want to play by the rules now.”
“People are genuinely not clear on where the line is defined between needing a visa, needing a P performance visa, or coming on visa waiver, the ESTA, or B travel,” McEntee added. “I think people are more aware of the scrutiny [now].” She cited a case from last year where an Italian band arriving on ESTA were arrested and deported on their way to SXSW. “It was a high-profile case in the media that I think has just resulted in more awareness surrounding this visa category, so maybe that explains some of it,” she said.
Spitz also said that anxiety about anti-immigrant sentiment would not ultimately deter an artist from wanting to come to the US. “The US market is so important to international artists,” said Spitz. “That’s just always the case.” And, said El Khatib, artists have audiences who do not necessarily share the administration’s anti-immigrant views. “Half of the American citizens didn’t vote for Trump,” he said, “and it would be a shame to penalize those people who didn’t vote for Trump.”
At the opening night for Crossing The Line at FIAF last Saturday, festival co-curator and founder Lili Chopra took to the podium to address the crowd of international artists and attendees. “Everyone around the world still wants to come to New York,” she said. Murmurs of agreement filled the room.
