SPORTS AND ENTERTAINMENT IMMIGRATION: What We Know, What We Don’t Know, and What We Think About the Future of Immigration Under Mr. Trump

NYSBA Entertainment, Arts and Sports Law Journal

Spring 2017 | Vol. 28 | No. 1


“Do you think that I could be deported after receiving employment authorization under the Deferred Action for Childhood Arrivals (DACA) program?” “Is it going to be harder to get a visa?” “What will happen to my current visa?” “What about the fact that my visa is currently pending?” “Will I have an issue entering the U.S.?” “What will happen to the E visa and the treaty countries?” These are some of the questions that I have received since the evening of November 8, 2016.

In this installment of Sports and Entertainment Immigration, we will review the current state of immigration for the practitioner, address some of these questions, and look at what may be forthcoming under President Trump and his cabinet.

However, because of the scope of visa options that are relevant to the sports and entertainment industries, we will focus on the most common ones: O, P, and H-1B3, which are for athletes, artists, entertainers, performers, groups, and fashion models, respectively. We will also look at policies that may not expressly relate to these classifications, but could have an impact on the sports and entertainment industries, depending upon how they are interpreted and implemented.

What We Know

Mr. Trump’s Posturing Was Genuine

We know that Mr. Trump’s promises on the campaign trail to build a wall, deport the “really bad dudes”¹ and the like, were not mere braggadocio, or if they were, they are not now that he has assumed the role of President of the United States. We know this because within his first month—a mere four weeks—in office, Mr. Trump signed executive actions that: (1) direct the U.S. Department of Homeland Security (the DHS) “to immediately plan, design, and construct a physical wall along the southern border;”² (2) expand the deportation priorities of the U.S. Immigration and Customs Enforcement (ICE) agents to anyone who “[has] committed acts that constitute a chargeable criminal offense,” or “ [i]n the judgment of an immigration officer, otherwise pose[s] a risk to public safety or national security;”³ (3) strip federal funding from any jurisdiction that the Secretary of DHS designates as a “sanctuary jurisdiction,” which includes any “entity that […] has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law;”⁴ and of course, (4) ban individuals who are nationals of Iran, Iraq, Syria, Libya, Somalia, Sudan, and Yemen.⁵

We also know that the last of these executive actions to bar individuals from entry into the U.S. was unlike most other rules, regulations, orders, actions, and laws that are enacted: It went into effect immediately without allowing for a period of implementation. This caused mayhem and confusion at airports across the U.S., which in turn provoked state attorneys general to file a flurry of lawsuits against the President and his Administration. In State of Washington & State of Minnesota v. Trump, the district judge issued a temporary restraining order that halted the implementation of the Executive Order, which was upheld by the Ninth Circuit on appeal.

Lastly, we know that this Executive Order not only had an impact on athletes, entertainers, researchers, engineers, physicians, and the like from those seven countries, but it also provoked Iran to react in a like-fashion by banning Americans from entering its territory. The result was that American wrestlers who were scheduled to compete in the Wrestling World Cup were suddenly unable to enter the country.⁶

International Entrepreneur Rule

We know that President Obama, through Secretary of Homeland Security Jeh Johnson, introduced the International Entrepreneur Rule (the Rule). The Rule would allow the Secretary of Homeland Security to use his or her “discretionary parole authority […] to entrepreneurs of start-up entities whose entry into the United States would provide a significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation.”⁷ We know that the Department of Homeland Security published the Proposed Rule in the Federal Register on August 31, 2016, for public comment. The window for public comment closed on October 17, 2016.⁸ The Final Rule was published in the Federal Register on January 17, 2017, and is scheduled to go into effect on July 16, 2017.⁹

Judging by the text of the Final Rule, we know that this has the potential to be beneficial to international music producers, restaurateurs, studios, production houses, and more. We know this because of the criteria for benefits under the Final Rule, which include that the startup venture has received: (1) an investment of $250,000 from qualified U.S. investors; (2) awards or grants totaling $100,000 or more from government entities; or (3) the partial satisfaction of one or both of Criteria 1 or Criteria 2, with “other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.”¹⁰ In the case of a performance theatre, recording studio, sublabel, subpublisher or the like, it is possible that the label’s advance could constitute an initial investment that, when coupled with additional evidence of the producer’s record for success, could meet these criteria.

Service Centers

Whether seeking an O, P, or H-1B3 visa, the practitioner must file the petition with either the California Service Center (CSC) or the Vermont Service Center (VSC).¹¹ However, we know that the CSC has many problems and has a demonstrated history of problems. There is some administrative precedent for this dating back to 2012 in In re Skirball Cultural Center, 25 I&N Dec. 799 (AAO 2012).¹² However, the situation has not changed, and is seemingly getting worse.

As part of the process to review visa petitions, after receiving the package of materials, an immigration officer will either approve the petition or make a request for additional evidence (an RFE or RFEs) to clarify or substantiate claims that were made in the petition. We know that since June 2016, and some were seeing this earlier, the CSC has been with increasing frequency issuing curious RFEs. We know from those RFEs that the reviewing officer(s) has/have been using standards of review that are beyond the scope of the rules and regulations. We also know that the reviewing officer(s) is/are exercising the significant latitude that they have when adjudicating a petition.

We also know that in some instances, individuals who submit letters of recommendation in support of a prospective beneficiary’s petition are being contacted by the various service centers. The purpose of this contact has, in many instances, been to verify that the referee knows the beneficiary, and sadly, has occurred when the beneficiary is from a Middle Eastern nation or has a seemingly Arab name.

Visas Are Issued by U.S. Embassies or Consulates, Which Are Overseen by the Secretary of State

Even after a petition has been filed and approved by one of these Service Centers, we know that the individual beneficiary, once outside of the U.S., typically needs to attend an interview at a U.S. embassy or consulate to obtain the immigration status before re-entering the U.S. The Consular Officer will question the beneficiary about the basis of his or her petition and is typically ministerial.

We know that the Secretary of State oversees the U.S Department of State, which includes the many U.S. embassies and consulates around the world.

Jeff Sessions Is Not a Fan of Immigration or Reforming It

We know, from his years in Congress and his record as brought out during his Senate Confirmation Hearing, that Senator Sessions (R-AL) repeatedly voted against immigration bills, including the bipartisan reformative bill that was presented in 2013, and that he stated that the DACA program is unconstitutional.¹³ Senator Sessions has a long history of being concerned about immigration and stated at his confirmation hearing that he believes that each of the individuals who has entered the country without inspection poses a humanitarian concern, especially children.¹⁴ We also know that Senator Sessions’ record on civil rights contains an array of cautionary examples.¹⁵

Trump Has Benefited from H-1B Visas and the Value Added from Specialized Workers

As presented in our last installment of Entertainment Immigration, we know that Mr. Trump benefited from the H-1B3 visa when, through his or his affiliates, fashion models were brought into the U.S. Mr. Trump stated without reservation that he uses it, and in fact, that he has used the immigration laws to the detriment of U.S. workers.¹⁶ We also know that he has indicated that he wants to get rid of the H-1B program,¹⁷ but that he has changed positions with relative ease and frequency.

Nothing Is Off the Table

Due to the frequency and ease of his changing positions, and from his own statements that we “can’t take anything off the table” with respect to threats of nuclear weapons, we know that Mr. Trump will entertain any immigration option that is presented to him.

What We Don’t Know

International Entrepreneur Rule

With the Final Rule published on January 17th and set for implementation by July 16th, we do not know whether Mr. Trump’s Secretary of Homeland Security, General John Kelly, will maintain the Rule. As the Rule is based on discretionary powers of the Secretary of Homeland Security, as interpreted by President Obama and his Secretary of Homeland Security Jeh Johnson, it is possible that the Rule may be repealed or not enforced.

General John F. Kelly (Retired)

Though having been a military commander for many years, Retired General “Kelly has not said much about immigration policy, but experts are tentatively optimistic that he is well-acquainted with the agency’s mission: as head of U.S. Southern Command, responsible for military activities and relationships in Central and South America, he knows the region south of the border and often collaborated with DHS.”¹⁸ As Politico writes, after having interviewed six former DHS officials, “[Those officials] said they really don’t expect that much to immediately change beyond immigration policy.”¹⁹ Much of the immigration policy will be dictated by Mr. Trump, but if it is going to have to be implemented or enforced by General Kelly, we do not know how firmly he will follow through with doing so.

What Rex Tillerson Will Do to Visa Issuances as Secretary of State

This we simply do not know. At Mr. Tillerson’s confirmation hearing, Senator Ben Cardin (D-MD), during a line of questioning pertaining to human rights violators and preventing them from entering the U.S., indicated that, other than with respect to certain treaties in place between the U.S. and another country pertaining to diplomats or similarly situated individuals, to his knowledge, there are no restrictions on the Secretary of State’s ability to withdraw the right of someone to come to the U.S.²⁰ We know that Senator Cardin, generally speaking, is not wrong. We also know that Mr. Tillerson indicated that he “would ensure that a full examination is made of any and all applicable laws or other policies and then we would follow those and implement.”²¹ However, we do not know whether Mr. Tillerson will begin restricting visas (i) without warning, (ii) on a broad basis, (iii) on a narrow basis, (iv) based upon an individual’s nationality or religion, or (v) because he has been directed to by Mr. Trump. We also do not know whether he will be interested in restricting visas at all.

Mr. Trump’s Policies

Lastly, and unsurprisingly, as a practical matter, we do not know where Mr. Trump stands on many issues. It would appear from his Confirmation Hearing that General Kelly does not know either.²² We know what he has said, we know what he has proffered as policy points, but having gyrated around several of his claims, we cannot say that we know what are his policy positions. This has dire effects on consistency and continuity, and results in an increase of anxiety and uncertainty for many individuals and entities looking to enter the U.S. from abroad.

However, we now know where he stands on border security,²³ deportations,²⁴ and law enforcement,²⁵ but it would appear from some reporting that we may have an idea as to where he stands on other aspects of immigration, such as business immigration. If the reporting by Vox²⁶ and Bloomberg²⁷ regarding other contemplated Executive Orders is accurate and the White House enacts those orders, then we could see some unpleasant changes to: (1)the way certain classes of work authorization are man aged, such as with site visits for all visas; or (2) programs altogether, with the rescission of the Optional Practical Training Science, Technology, Engineering, and Mathematics (OPT STEM) extension that recently went into effect.²⁸

How, Then, Do We Answer Those Questions at the Top?

The only way to answer those questions presented above, and most others, is to guess.

Do you think that I could be deported after receiving employment authorization under the DACA program? Though there has been one person that we know of who benefited from DACA and has now been detained, it looks like this is not going to be a common occurrence. There has already been a bipartisan bill introduced to protect those DACA beneficiaries.²⁹ Though it was the Senate that introduced the immigration reform bill that languished and was never taken up in the House, that there is a bipartisan effort to protect DACA beneficiaries keeps us optimistic that if the House passes a bill to harm those DACA beneficiaries, it will fail. It also seems likely that the courts would prevent any such action against these individuals, but nonetheless, we must wait and see as this case progresses.

Is it going to be harder to get a visa? This is largely going to be dependent upon how we see General Kelly lead, who will oversee USCIS, what the institutional attitude will be at USCIS, and of course, where the petition is going to be reviewed. It may be a bit more difficult to obtain a visa, but this is likely to be the result of individual officers who will require better training. We, as practitioners, will need to maintain close ties with the service centers and be prepared for increased scrutiny, whether valid or not. Mr.Trump’s clean sweep of the current array of U.S. ambassadors³⁰ would seem to speak to a broad change, which would indicate that we should also prepare for increased scrutiny, whether valid or not, at the embassies and consulates.

What will happen to my current visa? Current visas should not be impacted, though if he seeks to carry out Point 6 of his “10 Point Plan,” then it is possible that pending applications and petitions may be terminated or put on hold.³¹

What about the fact that my visa is currently pending; what should I do? If Point 6 of Mr. Trump’s plan is pursued with fervor, then it is possible that the petition or application could be denied due to the current circumstances.I would recommend utilizing premium processing, if possible, to try and obtain the desired immigration status while the system has not changed greatly.

Will I have an issue entering the U.S.? For most individuals, there should not be any issue entering the U.S. However, for anyone who: (1) has a travel history that includes countries of questionable stability; (2) is from a country that the U.S. has deemed unstable, questionably unstable, unsafe or considers an adversary; and (3) has a given and/or family name that is of seemingly Middle Eastern origin, you should be prepared for questions.

Conclusion

Though there is much uncertainty and for many of our clients, this is a very stressful and frightening time, we can take some solace in the fact that there has been little aggression towards artists, athletes, and entertainers. If the only thing that we or our clients suffer is increased scrutiny and a tougher process, then we have not as much about which to be upset. However, because we know so little about what to expect, we must keep a close watch on the movement of all parties who can impact the implementation and enforcement of immigration policies. We also must keep in mind that every problem has a solution and that there are always options, even though they might not be ideal.

Endnotes

  1. http://www.nydailynews.com/news/politics/trump-immigration-strategy-deport-bad-dudes-article-1.2304611.
  2. https://www.whitehouse.gov/the-press-office/2017/01/25/executive-order-border-security-and-immigration-enforcement-improvements Section 4(a).
  3. https://www.whitehouse.gov/the-press-office/2017/01/25/presidential-executive-order-enhancing-public-safety-interior-united Section 5(c) and (g), respectively.
  4. Id. at Section 9(a).
  5. https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-foreign-terrorist-entry-united-states Section 3(c). Those seven nations—Iraq, Iran, Syria, Libya,Somalia, Sudan, and Yemen—are not expressly referenced in the Executive Order. Under 8 U.S.C. 1187(a)(12), section 217(a)(12) of the Immigration and Nationality Act (the INA), the Secretaries of the Departments of Homeland Security (DHS) and State (DOS), may submit to the President a list of countries that pose national security concerns, and if approved, suspend nationals of those countries from engaging in the Visa Waiver Program. The Visa Waiver Program is a low security method of entry to the U.S.; if you know anyone who has ever come to the U.S. from Western Europe for no more than 90 days to travel or engage in passive business activities, that person likely entered the U.S. through the Visa Waiver Program (or what many refer to as ESTA). In 2015, the Visa Waiver Program Improvement and Terrorist Travel Prevention Act (the VWP Act) was passed, and Iraq, Syria, Iran, and Sudan were removed from the Visa Waiver Program by the DHS. In 2016, the DHS removed the three remaining countries—Libya, Somalia, and Yemen—from the Visa Waiver Program. This is how the list was derived for Mr. Trump’s Executive Order. This is also how we know that President Obama did not ban nationals of these seven countries from entering the United States: the VWP Act pertains only to the Visa Waiver Program, not all methods of entry into the U.S.
  6. https://www.nytimes.com/2017/02/03/sports/iran-american-wrestling-team-world-cup.html. Ultimately, when Mr. Trump’s ban was lifted, so too did Iran lift its ban, and the result was that the American wrestlers were authorized to re-enter and compete in the competition.
  7. https://www.uscis.gov/sites/default/fi les/USCIS/Laws/Articles/FR_2016-20663_793250_OFR.pdf.
  8. https://www.federalregister.gov/documents/2016/08/31/2016-20663/international-entrepreneur-rule.
  9. https://www.federalregister.gov/documents/2017/01/17/ 201700481/international-entrepreneur-rule.
  10. Id.
  11. As a practitioner who files frequently with both service centers, though more so to the VSC, it is important to note that I believe both are lovely places, staffed with fantastic individuals.
  12. https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3752.pdf.
  13. https://www.c-span.org/video/?420932-1/attorney-general-nominee-jeff-sessions-testifies-confirmation-hearing&start=7184.
  14. Id.
  15. Id.
  16. http://www.ontheissues.org/2016/Donald_Trump_Immigration.htm – 2016 GOP primary debate in Miami, March 10, 2016Q: Your critics say your campaign platform is inconsistent with how you run your businesses, noting that you’ve brought in foreign workers instead of hiring Americans.Why should voters trust that you will run the country differently from how you run your businesses?TRUMP: Because nobody knows the system better than me. I know the H-1B. I know the H-2B. Nobody knows it better than me. I’m a businessman. These are laws. These are rules. We’re allowed to do it. So I will take advantage of it; they’re the laws. But I’m the one that knows how to change it.Q: So what would you do with H-1B visas?TRUMP: It’s something that I frankly use and I shouldn’t be allowed to use it. We shouldn’t have it. Very, very bad for workers. And second of all, I think it’s very important to say, well, I’m a businessman and I have to do what I have to do. When it’s sitting there waiting for you, but it’s very bad. It’s very bad for our workers and it’s unfair for our workers. And we should end it.
  17. http://blogs.wsj.com/indiarealtime/2016/11/17/what-will-happen-to-h-1b-skilled-worker-visas-under-donald-trump/.
  18. http://www.politico.com/agenda/story/2016/12/john-kelly-policies-immigration-homeland-security-000256.
  19. Id.
  20. https://www.c-span.org/video/?421335-1/secretary-state-nominee-rex-tillerson-testifies-confirmation-hearing&start=4115.
  21. Id.
  22. https://www.c-span.org/video/?421234-1/homeland-security-nominee-general-john-kelly-testifies-confirmation-hearing, January 10, 2017. At his Confirmation Hearing, Senator Kamala Harris (D-CA) provided an overview of the DACA program and asked Gen. Kelly, “[t]he Department of Homeland Security assured [DACA beneficiaries] that it would follow its long-standing practice of not using such information for law-enforcement purposes, except in very limited circumstances. These young people are now worried that the information that they provided in good faith to our government may now be used to track them down and lead to their removal. […] Do you agree that under DACA, we and thoseyoung people, hundreds of thousands of them have relied on our representations? Do you agree with that? That we would not use this information against them?” Gen. Kelly’s answer was, “The entire development of immigration policy is ongoing right now in terms of the upcoming administration. I have not been involved in those discussions. If confirmed, I think, I know, that I will be involved in those discussions.”
  23. https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-foreign-terrorist-entry-united-states; and https://www.whitehouse.gov/the-press-office/2017/01/25/executive-order-border-security-and-immigration-enforcement-improvements.
  24. https://www.whitehouse.gov/the-press-office/2017/01/25/executive-order-border-security-and-immigration-enforcement-improvements. Another example is the detention of a “Dreamer” or person who was brought into the U.S. unlawfully by his or her parents at a young age. The individual has been working in the U.S. lawfully under the DACA program, which gives many of us significant pause over what may be forthcoming. http://thehill.com/blogs/blog-briefing-room/news/319569-reuters-ice-arrests-dreamer-in-seattle.
  25. https://www.whitehouse.gov/the-press-office/2017/01/25/presidential-executive-order-enhancing-public-safety-interior-united.
  26. http://www.vox.com/policy-and-politics/2017/1/25/14390106/leaked-drafts-trump-immigrants-executive-order.
  27. https://www.bloomberg.com/news/articles/2017-01-30/trump-s-next-move-on-immigration-to-hit-closer-to-home-for-tech.
  28. Id.
  29. http://immigrationimpact.com/2016/12/09/bar-removal-of-individuals-who-dream-and-grow-our-economy-act/.
  30. http://www.nytimes.com/2017/01/05/us/politics/trump-ambassadors.html.
  31. Point 6 reads, “Suspend the issuance of visas to any place where adequate screening cannot occur, until proven and effective vetting mechanisms can be put into place.” Available at https://www.donaldjtrump.com/policies/immigration/.

Article originally written in Entertainment, Arts and Sports Law Journal and is republished here with permission from NYSBA.

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