Immigration in the Arts: An Interview with Lawyers Nathan Waxman and Susu Durst

by Paddy Johnson on September 19, 2012 · 0 comments Interview

In 1999, I moved from Canada to the United States to go to grad school. As many foreign students do, I stayed  in the U.S. after I finished my degree in 2001 and thus needed a work visa.  It was around that time that I met Nathan Waxman, an immigration lawyer who put together the paperwork for the jobs I took.

Nathan is awesome. He makes immigration and paperwork sound fascinating, not frightening, and he can talk about art with the best of them. So, I figured I’d sit down with him and Susu Durst, an Extraordinary Ability Specialist who works at his firm. I asked them to get me up to speed on the lastest immigration news for artists, and chat a little about what artists need to do to immigrate to the U.S. We spoke about all that, and even ended up discussing how the differences in Canadian and American culture have informed immigration policy. It was amazing.

Paddy Johnson: If you live overseas, and you’re an artist or want to work in the arts, do you think the task of getting a work visa should feel daunting to you?

Susu Durst: Absolutely not.

Nathan Waxman: Especially not for artists.

SD: We’ve done a bunch of DJ’s and musicians. It’s really only actors who have a tough time…especially stage actors.

NW: They’ve made it easier for artists and harder for actors; that’s because actors have organizations that protect them from foreign competition. Artists Equity is particularly protectionist.

PJ: I take it we’re talking about O visas here, visas issued for extraordinary ability.

NW: The O is a visa for non-immigrants. In other words, it’s not a green card but it could conceivably allow artists or entertainers to remain in the U.S. indefinitely, by obtaining extensions. The initial O-1 visa may last up to three years, with the potential for indefinite extensions. Last year or the year before, there was lots of discussion about the O visa in the arts, especially acting, becoming exceptionally difficult because [Immigration] was enforcing the itinerary requirement. What this means is that Immigration wants to know what you’re actually going to be doing. The problem is, we have had actor clients who are really major, major figures and easily meet the O standard, but who don’t have any work. In the past, the O had been used as a way of coming to the U.S. to get work. Since the service has really cracked down on that, it’s been a real problem for a lot of our overseas actors. It’s the cart before the horse problem: they need to get here to audition, but if we just say they are auditioning, the case will be denied.

SD: The one thing that has changed in the last 6 to 9 months is that the adjudication process for O visas has been way, way faster. It only takes two weeks by regular process to get a good case through.

PJ: Two weeks? What’s changed?

NW: I’m guessing that they hired more people, and when they run out of H’s they have lots of people left in places like Vermont who have nothing to do, so the O-1s get done quickly.

PJ: What is an H visa?

NW: It’s a temporary professional visa for a job requiring, at minimum, a university degree. Unfortunately, it’s numerically limited and new petitions tend to be exhausted by late spring or early summer. H’s, unlike O’s, contemplate a traditional employer/employee relationship and must be compensated at appropriate US wage levels.

PJ: What about J-1s? Those are intern and student visas.

NW: They are primarily for interns and trainees. The problem with the J-1 is that it is limited to 12 to 18 months, so by the time you’re here it’s over. And then many of those people are stranded, because there aren’t any H-1s left for someone who’s not in an H-1 position, or who just doesn’t qualify for an O. The J-1 really is relatively easy to get because of its short-term nature, but it’s not so attractive for so many people. But it certainly would be ideal for someone who just wants the experience of working in Los Angeles or New York for a year.

PJ: Does it seem like it might be a good place to get enough experience to qualify for an O?

NW: It might be. It some cases it makes sense. If you’re Canadian you may qualify for a TN1 [a temporary work visa]. But it represents a dead end, and people on TN1 visas may wind up being stranded with no status. So we have to be cautious about recommending it to people, because once a TN’s 18 months is up, if there are no H-1s available, and the TN isn’t likely to succeed as an O-1 petitioner, there’s no way for him or her to stay, other than marriage.

PJ: That’s really too bad.

NW: Well, the system developed over many decades, in a random way, so that there are winners and losers and it’s never represented any kind of systematic thought; I think people being stranded is kind of inevitable, as a result of the patchwork nature of the system.

SD: But maybe what you’re thinking about more is artists and people in the arts, and we’ve been doing some interesting cases. Right now, we have a pending case on behalf of a girl who is supposed to be working at MoMA PS1.

PJ: Doing what?

SD: Curating, and performance art. She’s a performance artist and also a curator, and we’ve received a request for additional evidence.

PJ: Which is what happened with me, when I was applying for my green card.

SD: Right, and we responded, and it was promptly approved.

PJ: So is that for a green card or an O visa?

Both: An O visa.

SD: She’s kind of a junior person, she’s not quite at the seniority that you had when you applied for a green card.

NW: But she’s also kind of at the border of two fields, of curating and performance art. We have a chronic problem with explaining performance art to Immigration. It’s in art forms that represent a synthesis of existing media where we encounter problems. Immigration tends to think in very traditional terms of “Well, what gallery is it in? What museum is it in? Has The New York Times talked about it?”

PJ: It’s interesting that while the art world really trumpets this idea of blurring boundaries, the very things that make the arts unique and extraordinary are also the things that make an immigration case challenging.

NW: We’re dealing with immigration adjudicators who are generally well-meaning civil servants, but who are in little boxes, literally working in little cubicles from 8:30 to 4:30 and who get a pile of cases. They don’t have a lot of time to think about art. What has changed is they have computers, and their computers have access to the Internet.

PJ: And has that helped?

NW: It has helped. They are willing to accept the avant-garde, but only if they can find people discussing it. So if there’s blog discussion or print discussion of our client’s work, we’re going to get an approval. If we’re relying just on testimonial letters, even letters from big people, it can be a problem. We had a great case with a letter from Roseanne Barr, but there was almost no print or blog discussion of the filmmaker, so it was denied. I think, for a young filmmaker [like him], if there are two or three blog mentions, two or three articles, plus a letter from Roseanne Barr, it would have been approved. There is a kind of consensus perception on the part of the adjudicator. If other people are talking about the artist in some kind of formal publication, it’s going to make a difference.

PJ: Positive or negative discussion?

NW: Either. I don’t think negatively matters much. If you look at the reaction to people like Tristan Tzara, going back 90 years…no one could doubt that they were making waves, and we remember them 90 years later. Today’s controversialist, tomorrow’s cliché.

I think it’s interesting that immigration officers are put in a position where they’re essentially reviewing the avant-garde. These are people who probably never expected to be in that kind of position.

PJ: How often are they looking at people who are really pushing the envelope?

NW: I think all the time. Of course, we’re in New York. Maybe if we were in Kansas City we’d have a different perspective. Some of these cases are what we used to call “Williamsburg” cases, but Williamsburg is becoming the mainstream. We did succeed in a permanent residence petition for a woman who dressed up in a wedding dress and stood in a store window for 12 hours. But you can’t keep winning with that. The problem is there is a kind of dilution effect that’s similar to a cute dog doing a trick for the 12th time: it becomes boring. We’ve seen some pretty extreme cases: a cake artist, who made buttocks imprints in chocolate cakes, as a statement.

She was actually on a TN visa as a graphic artist, and got it extended year after year. For all I know, she’s still a TN graphic artist. She had approached us several times about an EB1.

PJ: What is in the EB-1?

NW: An EB-1 is the extraordinary ability green card mechanism. It’s more appropriate than the national interest waiver for most artists’ and entertainers’ cases. We didn’t quite see the national interest waiver value of the buttocks artist, and I didn’t see the extraordinary. Had she been written up in avant-garde publications and blogs we might eventually have been able to do the case. Sometimes we just can’t quite pull it off. But as the horizons of recognized art expand, we’re considering increasingly radical, albeit meritorious, cases.

PJ: Overall, have things got easier or harder for artists looking for work permits in the United States?

NW: I think that artists have an easier time than actors. We’ve seen more willingness to tolerate the unknown in the plastic arts.

SD: The extraordinary ability mechanism for artists is a lower standard, and the O1 is a lower standard, significantly. Applicants only have to show that they are distinguished in the field versus extraordinary.

NW: That’s in large part a result of the fact that so much American TV is made in Vancouver, so it’s often necessary for people to go back and forth into the U.S. Congress made the O standard intentionally easier for actors than for scientists or businessmen. So, for example, if you look at some of the cable networks like Lifetime, a substantial percentage of their original content is made in Canada, using American and Canadian actors primarily. Some of those actors have to do work in the U.S., so the O enables them to get into the U.S., having done maybe one or two TV shows in Canada. I think the O was motivated in part by the tremendous interdependence of the U.S. and Canada especially.

They carved out an easier path for actors because the TV industry is so desperately in need of new talent, especially from the English-speaking world.

SD: Why do actors need an advisory opinion?

NW: The advisory opinion goes back to the days before 1990, when artists and entertainers got H1s rather than O’s. The former INS decided that some sort of objective confirmation of eligibility was necessary to put a check on the runaway commendation and distortion sometimes present in the ensemble of reference letters usually submitted in support of artists’ petitions. Originally, the pre-1991 H1 encompassed both professionals and aliens of distinguished merit. In 1990 the category was broken into two different categories, [one of] which is now the H, which is limited to 65,000 visas per year, and that’s for jobs that require a college degree, and, strangely, fashion models. The inclusion of fashion models in the H1 was the result of lobbying by Sears, because in 1990 the Sears catalogue required a huge number of models. At the time, Sears and JC Penney were major forces. When they severed the O1 from the H1 in 1990 Sears hired lobbyists to go to Washington and have fashion models put into the H1 category. I don’t think anyone looks at the Sears catalogue anymore; even in North Dakota people can order online. But remember in 1990, there was no Amazon, there was no Google, there was barely an Internet.

That fairly random decision has been enormously beneficial to artists, but has been tough on the tech industry. Microsoft is constantly lobbying to lift the limit of H1’s. Microsoft now has a major research establishment in Vancouver, full of Indians who don’t make the H1 cut in the US.

American immigration law has been largely beneficial for Canada, because the H1 numbers are exhausted in the US within a few months, and when that happens, Canada beckons. Then people wind up in Toronto or Vancouver and decide they like it better than Cleveland anyway. So it’s an interesting issue that hasn’t been explored. Canada has benefited massively from the restrictive nature of US immigration law. Canada has been very pro-technology.

PJ: Are there other areas where you feel like US immigration is too restrictive?

NW: Canada will let people buy their way in. In the 90s, for $300,000 dollars you could have Canadian residence. That’s certainly created the multi-cultural Canada we know today, made up of middle class people that the US has turned away.

PJ: So TN1’s make it easier for Canadians and Mexicans to work in the US right? They are the temporary visas.

NW: They’re offered to Americans too. I could have the equivalent of a TN1 and work in Toronto as an immigration lawyer, and lots of American immigration lawyers tried that, and found that they couldn’t make enough money doing it.

PJ: Canadians are very frugal.

NW: Right. There’s a whole different culture. Canada has a point system, so it’s kind of like a game. To get into Canada, you have to have a certain number of points. So people can kind of do it themselves.

PJ: What do you get points for?

SD: Age, for knowing French, for having degrees, job offers, and publications.

NW: The US is terrified of that system. Canada really believes in objective, democratic adjudication, which would be a disaster for our industry.

SD: Ours is based on subjectivity, that it’s all adjudicated by one person, so you have to distinctly make the argument in order to convince that person.

PJ: But you never know who that person is going to be.

NW: That’s exactly right. It’s a blind system, so I think it benefits those with creativity, imagination, and dynamism. It’s certainly benefitted us, but it’s very similar to the tax system. One of the reasons it’s not going to be reformed is that there are whole industries of people making their money off their expertise navigating this system. If we had simply a flat tax based on income, an awful lot of people who make their living doing tax returns would be out of work. So the CPA firms, like the law firms, would be pretty unhappy about a simple system. There’s always going to be some degree of protectionism involved.

The fact is, though, I do think that the element of randomness has kind of driven the kind of creativity we have here now. We’ve benefitted from the randomness; people might not have made it on a more objective system. I think there’s an extent to which America likes the unpredictable, we embrace the unpredictable.

SD: Which is a frontier mentality, and I like that about America.

NW: I think if we had a totally neutral point system we would get a lot of really good people, but we would also miss some of the avant-garde people who don’t fall into traditional categories, and in the long run we lose as much as we would gain.

SD: Because even though these categories that we’re working with are old, we still can play, we can push through, and it makes us very creative.

NW: I think that’s a big part of the whole American narrative. Canada has this kind of exaltation of democracy, and fairness, and predictability, you know, things we don’t really take seriously. We actually like the arbitrary and the random, and expect it. It actually drives our culture.

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