September 30, 2008
Tax FAQ Now Online

Answers to your most frequently asked questions regarding the tax requirements for foreign guests artists are now available online. The tax FAQ posted on the Artists from Abroad web site provides an overview of the most common inquiries regarding withholding requirements, tax returns, and identification numbers for foreign guest artists..

September 18, 2008
Clarification on Accountable Plan Rules

The most recent verbal guidance from the IRS, as well as the IRS’s written guidance, indicates that the “accountable plan rules” are applicable to nonresident aliens working as independent contractors in the United States.  In effect, an expense reimbursement made to a foreign artist in accordance with these rules is not reportable as income – and is not subject to 30% withholding. The accountable plan rules also apply to expenses paid to third parties on the artist’s behalf (e.g., hotel accommodations and/or travel paid for or provided by a presenter). Learn more about the rules - and exceptions - in our updated guidance regarding payments subject to withholding.

The IRS is stepping up enforcement of the tax and withholding requirements for foreign entertainers. Do you know enough about the rules (and the exceptions!) to steer clear of IRS penalties? Whether you’re a frequent visitor to this site, or this is your first time viewing Artists from Abroad, check out the tax section, where we’ve posted all new guidance to help untangle the web of IRS rules. Authored by attorney Robyn Guilliams, the tax guidance includes details on withholding requirements, U.S. tax returns, identification numbers, and links to all of the forms needed to comply with IRS rules.

Careful preparation can reduce visa wait times. Whether a petition is filed with the California or Vermont Service Center, take note of the following tips:

Clearly label the outside of your shipping envelope. Speed petitions through the USCIS mailroom by indicating in bold letters on the outside of the packet whether the petition is “O” or “P,” regular or premium processing.

Sign in Blue Ink. USCIS may return a petition if it is not clear that the Form I-129 includes an original signature.

Triple-Check the Form I-129. Make sure the form is accurate and complete paying particular attention to the approval dates requested and vital information about the artist. Errors on the Form I-129 will result in errors on the visa approval notice!

Multiple Venues? Be Clear. Itinerary-based petitions involving multiple venues must be very clearly described up-front in the petitioner cover letter. Do not rely on a footnote or a reference buried deep in the petition.

Check Approval Notices. As soon as an approval notice is received, check it for accuracy. Wait too long, and correcting the notice is very difficult.

U.S. Citizenship and Immigration Services (USCIS) has announced a substantial increase in petition filing fees, effective for petitions postmarked on or after July 30, 2007. The Premium Processing fee remains $1,000.

• The fee for the regular I-129 petition for a nonimmigrant worker will increase from $190 to $320.
• The fee for the I-539 petition to extend/change status (used for spouses and dependents) will increase from $200 to $300.
• The fee for the I-824 petition for action on an approved application or petition (usually used to request a duplicate I-797 notice of approval) will increase from $200 to $340.

A complete fee schedule is available on the USCIS site. To avoid delays in processing, please note the fee change and plan accordingly.

Beginning May 16, 2007 visa petitioners may submit I-129 applications for O or P visas up to a maximum of one year in advance of their need for the foreign artist's services. Currently, the earliest petitioners may file is only up to 6 months in advance of a performance. U.S. Citizenship and Immigration Services (USCIS) made this rule change at the urging of the nonprofit performing arts community. Extending the earliest filing date from 6 to 12 months may provide relief for those petitioners prepared to file far in advance of a performance. Remember—file petitions as early as possible to be spared the $1,000 Premium Processing fee and to allow more time for consular processing to be completed.

The locations for filing visa petitions with U.S. Citizenship and Immigration Services (USCIS) will soon change. Petitions filed on or after April 2 should be mailed to either the California Service Center or Vermont Service Center, depending on the location where the work will be performed. Presently, all I-129 and I-539 visa petitions are mailed directly to the California Service Center for processing. There will be a short grace period during which petitions filed to the wrong USCIS location will be forwarded to the appropriate service center. However, after April 17 petitions filed to the incorrect address will be rejected and returned to the petitioner. Please see our USCIS Service Center Tips and Contact Information for complete information about the new locations for filing petitions.

California Service Center (CSC)—Petitioners Located in the Following States:
Alaska, Arizona, California, Colorado, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, Wyoming

Vermont Service Center (VSC)—Petitioner Located in the Following States:
Alabama, Arkansas, Connecticut, Delaware, District of Columbia, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, U.S. Virgin Islands, West Virginia

Beginning January 23, 2007, citizens of Canada, Mexico, and Bermuda must have a passport to enter the United States when traveling by air. Likewise, U.S. citizens re-entering the United States by air from Western Hemisphere countries will need a passport. Please notify traveling artists. The Department of Homeland Security has posted a list of Frequently Asked Questions regarding the new air travel passport requirements.

The U.S. tax requirements for foreign guest artists are vastly different than the laws for U.S. residents. Find essential information about Internal Revenue Service (IRS) withholding rules on the recently-updated tax section of Artists from Abroad: The Complete Guide to Immigration & Tax Requirements for Foreign Guest Artists.

The Artists from Abroad site has been updated to reflect recent IRS and Social Security Administration policy changes, including:

• Essential guidance for understanding the complex IRS withholding and documentation requirements
• The latest tips for obtaining U.S. tax identification numbers
• Links to key IRS forms and instructions

USCIS is closely examining petitions for completeness and will return petitions that are missing parts or include outdated forms, causing serious delays in the visa process. Two particular areas are subject to USCIS scrutiny:

Include TWO Copies of the Petition: When submitting the completed I-129 petition, be sure to include the original and one copy. Clearly mark the duplicate petition "COPY."

Use the Newest Form I-907: When applying for Premium Processing, be sure that the Form I-907 is dated 8/28/06. The USCIS will not accept prior editions of the form.

In general, do not rely on previously printed forms. Instead, print new forms each time from the USCIS web site to avoid unintentional reliance on an outdated form. It is also best to reconfirm the fees when filing a visa petition.

Effective March 3, the American Federation of Musicians (AFM) requires a $200 fee for each letter of non-objection requested by visa petitioners, an increase from the previous fee of $50. U.S. Citizenship and Immigration Services (USCIS) requires the labor letter for O and P visa applications for instrumental musicians. An AFM memo announcing the change, dated March 3, states that the increased charge is to "defray the considerable labor and material costs" of issuing the letters. All requests received by the AFM must include a corporate check, certified check, or money order payable to "AFM Immigration Processing." The AFM is efficient when responding to request for letters of nonobjection. However, for those petitioners requesting a response within 48 hours, the "expedited" consultation fee is $250.

Please note: If an artist is re-entering the U.S. to perform similar services within two years of the date of a previous O-1B labor consultation, the current petitioner may submit a copy of the earlier consultation. A previously-issued labor consultation may be used, even if the new petitioner is not the one who obtained the earlier consultation. View the labor consultation section of Artists from Abroad for complete consultation requirements.

Good News! In response to concerns expressed by the performing arts community, and as a result of meetings facilitated by the National Endowment for the Arts, the U.S. Department of State has issued a memo to consulates encouraging policies favorable to foreign artists applying for a visa to perform in the United States. The policy memo encourages consulates to accommodate the time-sensitive nature of arts-related visas and to avoid delays in issuing artist visas. Also, in the case of P visas, the memo reminds consulates that individual artists that are part of a group are not legally required to undergo consular processing at the same time and place. Finally, the memo urges consulates to exercise restraint in questioning the performance abilities of artists applying for visas, and specifically discourages consular officers from asking artists to perform as part of the visa application process.

While the memo does not require consulates to change their interview or issuance rules, having a copy of the memo on hand may help artists encountering problems on a case-by-case basis. Please consider providing foreign artists with a copy of the July 19th State Department Memo. While each consulate has the authority to determine its visa issuance policies in light of local conditions, the memo is a strong statement in support of reasonable visa processing for artists.

Take note! As of March 11, 2005, the USCIS has revised the Form I-129, the form required for all O and P visa petitions for foreign guest artists. While the previous version of the form will be accepted by USCIS until April 30, please become familiar with the new form right away. The supporting evidence required for O and P visa petitions has not changed, but petitioners will find some new changes to the Form I-129. Most notably, the visa categories for artists that were formerly identified as O-1 and P-1 are now classified as O-1B and P-1B. Please read the Form I-129 carefully. Artistsfromabroad.org will soon be updated throughout to reflect any changes. In the meantime, please review our FAQ about the new form to learn the basics.

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