When the CARES Act gave freelancers access to unemployment benefits for the first time in U.S. history late last March, New York-based drummer and band leader Philippe Lemm (frontman for the Philipe Lemm Trio) wasn’t certain if he qualified as the holder of an O-1B visa, which is granted to individuals “with an extraordinary ability in the arts.”
The website for U.S. Citizenship and Immigration Services (USCIS) wasn’t much help. “It said they would be lenient,” says Lemm, a citizen of The Netherlands who came to the U.S. on an F-1 student visa in 2011 before being granted his first O-1B visa in 2013. “But that’s a very stretchable term.”
To see if he was actually eligible, Lemm applied for unemployment in New York state. But he opted against making an actual claim for benefits after his lawyers said it would risk his ability to renew his visa, which was due to expire in June.
“The overall feeling is, ‘Am I taking a risk that if I apply for something, I might lose my possibility to stay in this country?'” Lemm says.
The pandemic has put a magnifying glass on a host of issues affecting vulnerable groups in the music industry. But its effects on the lives of individuals who reside in the U.S. on “O” and “P” work visas — broad categories that encompass internationally recognized individuals and groups in the arts, sciences, education, business and athletics — have been largely overlooked.
In music, unemployment is arguably the biggest issue facing O and P visa holders during the COVID-19 pandemic, when the touring shutdown has devastated livelihoods. That’s because O and P visa holders are required to work during their stay, making a claim for unemployment benefits a potential red flag that could jeopardize future renewals.
It is unlikely that an O and P visa holder who receives unemployment aid will be caught in the short term, as there is typically no communication between state unemployment systems and USCIS, which monitors visa holders currently residing in the country, says Pierre Hachar, an entertainment attorney who owns Hachar Entertainment Group in Miami and works with Latin artists including Chayanne, Elvis Crespo and Leo Dan.
Problems are likely to arise, however, during the visa renewal period, when questions about employment status during the previous visa term often come up. This happened to Lemm, who filed for a visa renewal in April but couldn’t leave the country to complete his visa interview due to COVID-19. In May, he filed an extension, a step that would allow him to remain in the U.S. temporarily without undergoing the formal renewal process. The following month, his attorneys received a form known as a request for evidence (RFE) that asked for documentation that Lemm had been working between April and June.
“It was a very particular request which was not explained,” Lemm says. He now believes it may have been triggered by his prior unemployment application.
Lemm ultimately got lucky — his extension was approved in June with the help of his attorneys — but the situation could have been much worse. If immigration services discovers an unemployment claim during the process of a renewal or extension, “it could be catastrophic,” says Hachar. “Once you’re unlawfully present, not only do they revoke all your visas, you can get barred from entering the United States for a period of time” that could last up to 10 years.
Unfortunately, O and P visas are tailored to a specific field, meaning out-of-work musicians who hold them aren’t eligible to take on other types of work while residing in the U.S. As a result, many of these individuals have been left with difficult choices: apply for unemployment benefits and risk having their visas terminated or otherwise rejected for renewal; attempt to scrape by on whatever music-related work they’re able to pick up in the U.S.; or return to their home countries, where they could work in other fields.
(Notably, O and P visa holders are eligible to receive stimulus checks under the three relief bills that have passed since the beginning of the pandemic.)
The fraught situation has led many international musicians currently living in the U.S. to seek out the help of attorneys to determine their best course of action.
“Our advice to all of our clients right now who are in the U.S. is maintain some work and document it,” says Will Spitz, a partner at New York-based immigration firm Covey Law who leads its performing arts division and has represented Lemm.
That said, some O-1B and P-1B visas (the latter category applies to members of musical groups as opposed to individuals) tie a musician to a particular job — rendering freelance work a violation. That presents a problem for musicians who have lost their jobs with, say, a choir or an orchestra and are disallowed from doing music-related work outside of that.
President Joe Biden will be more supportive of O and P visa holders than Donald Trump in a few concrete ways, says Matthew Covey, principal partner at Covey Law and executive director of the affiliated nonprofit Tamizdat, which advocates for international cultural exchange. For one thing, Covey says, it appears likely the new administration will be less aggressive in increasing the fees charged for visa applications. Under Trump, those had been due to skyrocket more than 50% before a federal judge struck down that attempt in September 2020.
Hachar is also hopeful the Biden administration will view immigration through the lens of “a global economy” – which would be a distinct pivot from the “America First” slant of the Trump regime.
Biden’s Secretary of Homeland Security, Alejandro Mayorkas, for his part, “has been known to be generally open to rethinking how the immigration system works and has historically been aware of the problems that the immigration system causes for the arts,” says Covey.
Despite New President, Unemployment Concerns Linger
Still, it is not yet known how the Biden administration will deal with the issue of unemployment payments, which have been denied to O and P visa holders since the government first established the categories in 1990. There’s no indication the new president is willing to change the status quo even amid the pandemic, which means that many musicians will continue to face the same agonizing choices until widespread touring can resume.
The risk of making the wrong choice is great, which is why attorneys have been steering their clients away from making unemployment claims. In Hachar’s estimation, unless an alternative can be worked out, returning to one’s home country is generally preferable to risking a potential 10-year ban. “Just because you go back, you [can] still maintain [your] visa,” he says. “When the work commences, you can come back [to the U.S.].”
For clients in a stronger financial position, there are ways around the unemployment issue. Hachar says he has successfully helped clients remain in the U.S. by filing for a different category of visa — including a B-1 or B-2 visitor visa — in order to buy themselves time. However, a visitor visa doesn’t allow a person to work in the U.S., making it an option only for relatively privileged musicians who can afford to go for a period of time without income.
For those who can’t, like Lemm, navigating the system during COVID-19 amounts to a considerably bigger challenge. For those individuals, a sense of disillusionment is liable to set in. “I’ve been paying taxes here for a long time,” says Lemm. “I paid a crazy amount of tuition to go to school here, and now we’re being excluded from unemployment. It makes you feel like you’re still really an outsider.”
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