Coming to America: How Restrictive and Arbitrary Immigration Laws Burden the Artistic Community

By Lamberti, Rafael | Faulkner Law Review, Fall 2012 | Go to article overview

Coming to America: How Restrictive and Arbitrary Immigration Laws Burden the Artistic Community


Lamberti, Rafael, Faulkner Law Review


ABSTRACT

The main focus of this work is to explore the effect that United States immigration laws have on the international and domestic artistic community, particularly since the attacks of September 11, 2001. The economic impact of stricter immigration laws is observed in many industries, including music, film, and fashion. While there has been a candid effort by many legislators to rewrite the laws, little progress has been made, and the application of the laws continues to be highly subjective and capricious. In fact, practitioners in the field often express their discontent towards a largely discretionary system that has offered little guidance to the community as far as the legal standards and burdens that must be met when filing certain petitions. Nevertheless, the goal of both lobbying practitioners and supportive lawmakers is to make the immigration system more accessible and accommodating to the needs of foreign artists while not jeopardizing national security and safety.

TABLE OF CONTENTS

I.    INTRODUCTION
II.   THE ACTS AND THE VISA CATEGORIES
      A. The 1952 Act and the H-1 and H-2 Visas
         1. The H-1 Visa
         2. The H-2 Visa
         3. Criticism and Need for Change
      B. The 1990 Act and the O, P, and H-1B Visa Categories
         1. The 0 Visa Category
            a. The 0-1 Visa
               i. The Original Version
               ii. Criticism and Amendments
            b. The O-2 and 0-3 Visa
            c. Analyzing the Application Procedure Through
            Case Examples
         2. The P-Visa Category
            a. The P-1 Visa
               i. The Original Version
               ii. Criticism and Amendment
            b. The P-2 and P-3 Visa
            c. Analyzing the Application Procedure Through
            Case Examples
         3. The H-1B Fall Back Visa
            a. The Originally Intended Purpose
            b. As Applied to Fashion Models
            c. Analyzing the Visa Procedure Through
            Case Examples
      C. Changes After September 11, 2001
         1. Mandatory Interviews at a U.S. Consular Office
         2. Increased Intensity & Scope of Background Checks.
         3. Premium Processing
III.  THE FINANCIAL IMPACT ON THE ARTISTIC COMMUNITY
      A. Music Industry
      B. Fashion Industry
      C. Performing Arts Industry
IV.   THE SOLUTION
      A. Legislation
      B. USCIS Procedural Reform
      C. Other Models and Proposed Reform
V. CONCLUSION

I. INTRODUCTION

For better or for worse, the United States of America (U.S.) is the preferred destination for many immigrants. From the English Pilgrims in the 1600's to the Italian and Irish workers in the 1900's, immigrants have played such an important role in our society that even some of our most beloved fictional characters, like Fievel Mouskewitz and Michael Corleone, have come from immigrant tales. That trend certainly continues today as immigrants play an increasingly larger role in nearly every sector of our economy, adding "a net benefit of up to $10 billion a year." (1) Many of those immigrants find their version of the "American Dream" in the entertainment community, and likewise, the entertainment community welcomes their artistic and financial contribution. In 2011, foreign artists and entertainers accounted for roughly 30% of Grammy Award winners and over 45% of Oscar winners. (2) Not only do they represent a sizeable portion of the industry, but immigrants are also a major source of revenue.

Nevertheless, stricter U.S. immigration laws pose many barriers to foreign artists' attempts to showcase their talents in the American market. Though national security is undoubtedly the most important and unwavering goal of immigration laws, entertainment industry leaders and practitioners believe that the system does not realistically meet industry demands. To wit, the biggest complaints point to the largely discretionary and arbitrary application of the laws, the harsh procedural requirements, and the unwillingness of many legislators to meaningfully address these issues. …

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