Immigrant Artists and Their Employers: The Impact of "New York on PAUSE" on Visas
By Michael Cataliotti
The impact of COVID-19 on everyone has been significant, but it has potentially unexpected consequences for immigrant artists.
For example, in the case of nearly all visa categories --- but most notably for our purposes, O, P, and H -- when a visa holder no longer has work available to him/her/them, the artist will have 60 days to find a new employer and file for an extension of stay. Without doing so, that now-out-of-work individual will have to depart from the U.S. on or before the expiration of that 60-day period.
The impact on employers, too, is quite significant, but more so if the international-artist employee holds an H-1B visa. In that instance, and assuming an employer wants to retain the artist, the employer must be mindful not to decrease the artist's hours or pay below the prevailing wage and/or rate indicated on the labor condition application (LCA) and petition for a nonimmigrant worker (Form I-129). This is true, even if the employer reduces the number of hours and pay across-the-board, for all employees. Doing so could trigger the need for the employer to file a new LCA with the Department of Labor and an amended petition -- due to a "material change" -- with the United States Citizenship and Immigration Services (USCIS). Should the employer not do these things, it could face fines, sanctions, and the suspension of its authorization to petition for non-U.S. citizen workers across all classifications for one to three years. It is important to note here that for an H-1B, there is clear guidance about what constitutes a "material change", and so it is a bit easier to see when a new LCA and/or amended filing may be necessary.
In the event that the employee holds an O or P visa, the situation becomes a bit more complicated: Many O or P visas are issued to agents who are individuals or entities who/that simply hold the visa status, while the international artist works for multiple employers. There is little-to-no guidance regarding the potential ramifications in these instances, however, because most international artists do not hold an O or P visa tied to one employer, for which they receive a steady paycheck and a W-2, an amended filing may not be necessary. After all, "petitioner may add additional performances or engagements for an O-1 artist or entertainer during the validity period of the petition without filing an amended petition", so rescheduling those performances should also be appropriate. Nonetheless, it is important to keep these points in mind: (1) Safe practice would be for an agent to file an amended petition if an international-artist employee has a reduction in hours from employment for which he/she/they receive(s) a steady paycheck and W-2; and (2) The O and P visas do not involve LCAs, nor are they typically bound to one employer or a particular performance or production. As a result, evaluate on a case-by-case basis whether there is a need to file an amended petition, asking, "Has there been a material change in the terms and conditions of the employment or the beneficiary's eligibility?"
In the case where an international artist's work is terminated, another set of obligations hinge on whether the petitioner, i.e. the individual or entity who/that signed the paperwork for the international artist to receive a visa, is also the employer. If yes, then the petitioner-employer will need to: (1) withdraw the terminated employee's LCA from the DOL; (2) notify USCIS of the termination, thereby withdrawing the petition; and (3) pay for the terminated employee's transportation back to his/her/their home country. If no, then the petitioner-agent will need to evaluate, at a minimum, whether the artist has other employers indicated within or ancillary to the approved petition, and/or if there is a continuation of events that were described in the approved petition.
While the guidelines are clear for employers and international artists holding H-1B visas, they are more amorphous for agents, employers, and international artists under O and P visas. The result: This is new territory and without much guidance, we can only make reasoned decisions.
Do your best and stay safe.