The Dimming Spotlight: How New USCIS Rules Reshape the Artist Immigration Landscape
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[Ed. note: an incomplete version of this article appears in the print version of The Dramatist Spring 2024. The full article, which appears below, will be reprinted in The Dramatist Summer 2024.]


am an immigrant from Iran, educated in the United States, and now a lawyer by trade, specializing in artists’ immigration and entertainment law. I’m dedicated to guiding artists born outside the United States who have the desire to pursue their “American dream,” and create art in America. 

Navigating the visa system is both a financial burden and bureaucratic nightmare. Many artists begin their journey by getting in line to obtain an O-1B visa for an “Alien of Extraordinary Ability.” Unfortunately, given the range of international talent that seeks residency in the United States, the O-1B visa is a Golden Ticket that is getting more difficult to obtain these days.  Recent changes in US Citizenship & Immigration Services’ (“USCIS”) policies and practices have introduced significant new challenges to an already arduous process: hiked fees, slower processing times, and most distressingly, USCIS’s narrow and sometimes ambiguous interpretation of the relevant legal standard that an applicant must demonstrate—the “extraordinary ability” that entitles the artist to remain in America.   

First, the steep filing fee increases which will take effect on April 1, 2024—from $460 to an eye-watering $1,055 (up 129%), sparing only small businesses and nonprofit organizations with a slightly less onerous filing fee of $530 (up 15%)—blocks many artists’ journey before it even gets started. For most artists, many of whom self-fund their artistic ventures, especially dramatists living in New York City—the pulsating heart of the art scene where the cost of mere existence skyrockets—these fee increases are prohibitive and will undoubtedly stifle creativity. How will immigrant artists, who already face a struggle for visibility and financial independence, bear these new monetary challenges?

Another difficulty is the delay in processing times which can lead to missed opportunities and financial losses for artists, disrupting their careers and the cultural exchanges vital to the U.S. arts scene—especially for artists who need to be able to commit to professional engagements of different durations in the United States. The standard processing takes three to six months, and often, much longer. The premium processing option provides a fifteen-day turnaround; however, the cost is onerous, and it just got more expensive (from $2,500 to $2,805). Consular interviews add their own timeline delays; for the hopeful artist, the consulate’s backlog is yet another unforgiving and unpredictable journey. 

Moreover, despite no changes in the regulations, USCIS appears to be applying an evidentiary standard that goes beyond the “preponderance of the evidence” generally exercised in civil cases, which requires the applicant to only establish that their claim is more likely true than not.  This USCIS’s adjudication trends of holding applicants to a higher level of scrutiny often leads to ignoring the totality of the evidence and adversely tipping the scales against applicants. For example, it has become exceptionally difficult to establish an itinerary of future employment(s) that is not considered “speculative,” as speculation is a natural element of artistic careers. For individual contractors within the arts – such as playwrights, composers, lyricists, and librettists – work tends to be sporadic and tied to specific projects, making a non-linear career path the norm. 

Finally, USCIS’s misapplication of the law leads to a skewed and impractical assessment of the artist’s qualifications. This is often seen in USCIS’s treatment of criteria like press, which is used to establish the artists’ achievements and/or national or international acclaim.  USCIS is requiring the piece of “press” to almost exclusively focus on the individual rather than the body of work, thus undermining the collective nature of the applicant’s artistic achievements. In addition, USCIS is indifferent to the many ways modern artists find fame, especially in these times of constantly evolving media and communication landscapes. The rigidity runs counter to the spirit of the original O-1B visa, which was intended to aid extraordinary talent, not hinder it, and to allow foreign nationals to showcase how their art can contribute to and enrich American culture—artistically and economically.

There are those who say that these strict rules are necessary to ensure that the local labor market and national security are not compromised. In so far as this is the case, let’s not allow those considerations to cloud the diversity and cultural infusion that international artists bring to the American arts scene. 

For its part, the Guild should continue to advocate for an open and fair visa process in which international artists can be recognized for their own intrinsic worth. Guild members can get involved by supporting legislative reforms, engaging with advocacy groups, and calling attention to the many benefits of cultural exchange.

America has always been a nation of immigrants, and its cultural history has evolved and benefited from the talents and imagination of immigrant artists. Hopefully, that rich history of cultural infusion will continue and leave behind a lasting legacy—lest the spotlight dims on this global stage America has long promised it to be.

Shervin Abachi
Shervin Abachi

is an entertainment and immigration lawyer, with a focus on artist visas, practicing in New York and New Jersey.