By Yuchen Xie.

On January 30th, 2020, the Center for Art law will launch its Visual Artists’ Immigration Clinic. Since our 2017 discussion on the issues of art and immigration law at the Georges Bergès Gallery, recent regulations have renewed interest in the topic. The following is an introduction of immigration law, taking into account three artists’ perspectives.


The history of art in the United States is peppered with names of immigrant artists, including Marcel Duchamp (French), Tamara Łempicka (Polish), Mark Rothko (Russian), Arshile Gorky (Armenian), Yoko Ono (Japanese), Louise Bourgeois (French) and David Hockney (who announced that he was moving to France so that he could smoke freely).[1] Around the turn of the 20th century, with the rapid development of modern art, immigrant visual artists poured into New York.[2] After the 1930s, countless refugees seeking to escape the Nazis found refuge in the U.S., including Geroge Grosz (German), Marc Chagall (Belarusian-Russian-French), Piet Mondrian (Dutch), and Eric Isenburger (German). The influx of talented artists interested in living and working in the US continues with film makers, sculptures, photographs, painters, and many others applying for entry every year.

Thanks in part to the infusion of international talents, the U.S. has become “the domicile for many of the world’s leading artists, who contribute not only to the creativity and innovativeness of the American society but also shape the global cultural heritage significantly.”[3] As John. F. Kennedy said, “everywhere immigrants have enriched and strengthened the fabrics of American life.”[4] However, the settlement in the U.S. does not automatically guarantee a legal immigration status – besides permanent residency, several visa options allow artists to work and reside legally in the U.S. for a relatively long period of time. The Immigration and Nationality Act of 1965[5] “erected a legal framework that prioritized highly skilled immigrants.”[6] In 1990, Congress created a new visa classification, the O and P visas, for “aliens with extraordinary abilities, accompanying aliens, athletes and entertainers,”[7] noting that “immigration and foreign workers should substantially benefit the national economy, culture, and welfare.”[8] In contrast to the Immigration Act of 1965, the 1990 Act “revised the preference system, creating a three-track structure of family, employment, and diversity based preferences.”[9] While the overall impact of the new law “did not result in any reduction of immigration,” with changes in rules for sponsoring relative in 1996 as well as larger economic/political factors, it “has led to a decline in immigration by poorer immigrants and some diversification in terms of origins of immigrants.”[10]

According to the U.S. Citizenship and Immigration Services (“USCIS”), today, the commonly sought-after visa category for artists, the O visa, is a non-immigrant visa for “aliens of extraordinary ability in the sciences, arts (including the television and motion picture industry), education, business, or athletics,” with an initial duration of 3 years and option for renewal.[11] One key benefit of this classification is that, unlike the H-1B visa, it is not subject to a cap, a yearly limit on number of applicants being granted this visa. The specific classifications of the O visa include:

  • O-1A for “individuals with an extraordinary ability in the sciences, education, business, or athletics;”
  • O-1B for “individuals with an extraordinary ability in the arts or the extraordinary achievement in the motion picture or television industry;”
  • O-2 for “individuals who accompanies an O-1 individual to assist in a specific event or performance;” and
  • O-3 for “individuals who are the spouse or children of O-1s and O-2s.”[12]

From the Artist’s Perspective: Finding a Good Lawyer and Documentation is Key

Take a glimpse into the experience of Agnieszka “Aga” Pestka, an emerging artist from Poland, with multiple exhibitions held during Art Basel this year. After creating art in New York City under a tourist visa and then a student visa for two years, Aga realized that she needed a long-term visa. In an interview given to the Center for Art Law, Aga explained “with the visa, I can be more professional. I can set up my business, start working with art dealers, and selling my artworks.” Having been introduced to different visa options, Aga chose the O-1A visa since her career aspirations as a visual artist fit herself the most into this classification.

Agnieszka “Aga” Pestka making an etching in her studio, courtesy of the artist. https://www.apestka.com/

Aga’s experience working with attorneys is a rather complicated one: she had consulted three attorneys. While the first one turned out to be “not knowledgeable enough in regards to the artist visa,” the second one was helpful and informative in guiding her to prepare for the documents needed to establish a work history as an artist. Aga also met with a third attorney who had helped a friend of hers in obtaining the O-1A visa, but Aga relates that they spent more time talking about Aga’s art (which the attorney thought was “too commercial”) rather than talking about the merits of her application.

Aga’s experience underscores the unique difficulties facing O visa applicants – the fact that art can trigger subjective opinions makes it imperative that the attorney be careful in remaining a professional source of legal advice. By way of advice for fellow artists in the process of seeking the O-1 visa, Aga repeatedly emphasized the need to “do the research by yourself” and “come to the attorney with an informed mind.” Instead of relying completely on whichever attorney is available, artists, like Aga, can make wise decisions in selecting the most helpful and knowledgeable attorney. The importance of having a good attorney is further testified in the case of Pedro Mesa, a visual artist from Colombia who obtained his O-1 visa earlier this year after graduation from the School of Visual Arts in May 2018.

Pedro Mesa, A cardboard box has sat in the sun too long (2019, short film of 20:00 minutes), courtesy of the artist. https://www.pedromesa.com/

According to Mesa, his attorney discussed the strengths of his application in relation to his peers and worked with him on different tasks, such as preparing for exhibitions and collecting documentations from past exhibitions, every week for a duration of approximately six months. Mesa also mentioned, during the interview with the Center, that he should have taken the initiative to speak with an attorney even earlier so that he would know the requirements and gradually build up a strong application with less stress.

Sabrina Puppin had a rather different experience with the O-1 visa application. An Italian-born artist who has been painting for more than twenty years, Puppin obtained the O-1 visa in June, 2019 after graduating the School of Visual Arts with an M.F.A. in 2018. According to her, the biggest challenge for most emerging artists, especially international M.F.A students, is that they do not have a long artistic practice and a record of reputable exhibitions. Indeed, according to Mesa, “being a young artist doesn’t help, for sure.” For Puppin (with exhibition history around Europe and Qatar), the challenge was not to prove that she has an established career as an artist but to find the proof itself – many of her smaller exhibitions in Europe were not documented, especially those during the early years of her career. After the painstaking recreation of her career chronology and retrieval of exhibition records (catalogs, posters, reviews), she has come to realize the importance of documentation: “now I keep a record of everything.”

Sabrina Puppin in front of her painting Tsunami – Fury, courtesy of the artist. http://www.sabrinapuppin.com/

In terms of working with an attorney, Puppin had no trouble acquiring sufficient legal assistance. She successfully submitted her application after working with the attorney for three and a half months. Notably, with the assistance of her lawyer, she was able to interpret the educational aspect of her career at the Museum of Islamic Art in Qatar as part of her artistic practice, further extending the length of her career as an artist and strengthening the extraordinariness of her artistic ability.

The O-1 visa application process, while seemingly tedious, can be a moral building and a self-discovery process, that inadvertently gives an additional positive push for the advancement of the artist’s career. For instance, according to Aga, her visa application process was “very motivating and helpful” because the desire to demonstrate her outstanding qualities as an artist to secure the visa has pushed her to produce new works diligently, apply for inclusion in more exhibitions and publications, and constantly engage with the artistic community in New York City. Having gone so far with the O-1A visa application, “I feel more confident (about myself as an artist) now,” said Aga. Similarly, Puppin also had a significant career advancement during the visa application process. After the attorney pointed out that her application could benefit from the addition of at least one solo exhibition, she actively sought opportunities and successfully had five solo exhibitions in New York within five months: “you have to prove that there are galleries in the business that see (that) you have a future,” said Puppin.

A Quick Overview of the P Visa

The P visa, as compared to the O visa, provides a more temporary status for artists, athletes, and entertainers, with an initial period of stay not exceeding 1 year: the P-1 B classification applies to individuals who “are coming to the United States temporarily to perform” as a “member of an internationally recognized entertainment group… for a sustained and substantial period of time”; the P-2 classification applies to “individual performer or part of a group entering to perform under a reciprocal exchange program”; the P-3 classification applies to artists or entertainers “coming temporarily to perform, teach or coach as artists or entertainers… under a program that is culturally unique.”[13] Apparently, the P visa has more restricted terms for eligibility and does not apply to freelance artists.

Some Data and Numbers

USCIS, Non-immigrant Worker RFE Data (Jan. 2, 2019). Source: USCIS.

According to visa statistics reported by the U.S. Department of State, in fiscal year 2018, a total of 30,259 O visas were issued (Europe ranked the top in terms of region total, with a number of 15,661 O visas received; Asia ranked the second, with a total of 6,453 O visas received).[14] In the same period, a total of 36,075 P visas were issued (Europe ranked the top, with a number of 13,565 P visas received; Asia ranked the second, with a total of 8,613 P visas received).[15] While the approval rate for the P visa classification is not specified, the initial approval rate for the petitions for the O visa classification is 92.9% and the approval rate with Requests for Evidence (“RFE”) is 70.4%, as averaged from the aggregated data of visa approval rates from fiscal year 2015 to 2018, according to USCIS.[16]

In a word, with proper legal assistance and careful planning, the O and P visa categories can be highly beneficial for artists looking to develop their careers in the U.S. Even the application process itself can be conducive for the artist’s career. In preparing to obtain the visa, it is essential that artists make an informed decision regarding the timeline of the application process and the selection of attorney, meanwhile remaining organized and focused with their application materials.

Next year, with the Center’s Launch of the Visual Artists’ Immigration Clinic, we look to bring experienced attorneys and artists applying or extending work visas together to contribute to the vibrant arts community in New York and the US.


Endnotes:

  1. Margaretta Frederick, Art in America is a Story of Immigration, Delaware Online (March 31, 2016), link.
  2. Margaretta Frederick, ibid.
  3. Karol Jan Borowiecki, The Origins of Creativity: The Case of the Arts in the United States since 1850, Discussion Papers on Business and Economics, No. 3/2019. 3 (Feb. 2019).
  4. President John F. Kennedy, A Nation of Immigrants, p.11, Pickle Partners Publishing (2016).
  5. Immigration and Nationality Act of 1965 § 203, 8 U.S.C. § 1153 (1965).
  6. Immigration and Nationality Act of 1965, History, Art & Archives, U.S. House of Representatives (Dec. 02, 2019), link.
  7. The Visa for People Officially Deemed “Extraordinary”, the Atlantic (2016), link.
  8. S.358 – Immigration Act of 1990 §207, link.
  9. Malcom Collier, The Immigration Act of 1990, Summary prepared by Malcom Collier, SFSU (Feb. 2006), link.
  10. Id.
  11. O-1 Visa: Individuals with Extraordinary Ability or Achievement, U.S. Citizenship and Immigration Services (Jan. 5, 2017), link.
  12. Id.
  13. P-3 Artist or Entertainer Coming to Be Part of a Culturally Unique Program, U.S. Citizenship and Immigration Services (July 17, 2015), link.
  14. U.S. Department of State, Bureau of Consular Affairs, Nonimmigrant Visas Issued by Classification and Nationality (Including Border Crossing Cards): Fiscal Year 2018, link.
  15. Id.
  16. USCIS, Non-immigrant Worker RFE Data (Jan. 2, 2019), link.

Suggested Readings:

The author would like to thank Agnieszka Pestka, Sabrina Puppin, and Pedro Mesa for sharing their experience with the O-1 visa application. Their works can be found at:

https://www.apestka.com/

http://www.sabrinapuppin.com

https://www.pedromesa.com

About the Author: Yuchen Xie is a Fall 2019 Intern at the Center for Art Law and is pursuing her M.A. in Arts Administration at Columbia University. She holds her B.A. in Studio Art and French from the University of Virginia (2018). She can be reached at yx2472@tc.columbia.edu.