DHS Finalizes Steep Artist Visa Fee Increases and Policy Changes – (07/31/20)

The U.S. Department of Homeland Security (DHS) has finalized its December proposal to impose very steep increases to some of its filing fees, including for O and P artist visas applications filed by U.S. nonprofit arts organizations. Fee increases and policy changes are due to take effect beginning October 2, 2020:

  • Filing fees for regularly-processed O visa petitions will increase by 53% from $460 to $705 per petition, utilizing a new Form I-129O. (The original proposal was a new fee of $715)
  • Filing fees for regularly-processed P visa petitions will increase by 51% from $460 to $695 per petition, utilizing a new Form I-129MISC. (The original proposal was a new fee of $705)
  • The total number of individuals on a single petition will be capped at 25, which will require numerous petitions for larger ensembles. For example, a visiting ballet company comprising 110 dancers (or orchestra comprising 110 musicians), plus a handful of accompanying support staff will require 6 visa petitions rather than 2.
  • The Premium Processing Service (unaffordable to most organizations at an additional cost of $1,440) will now take longer with USCIS redefining the timeframe from 15 calendar days to 15 business days (which means federal working days) in order to complete processing.

In response to detailed comments submitted by national nonprofit arts stakeholders, DHS affirmed its decision to impose a 25-beneficiary cap, saying: “Because USCIS completes a background check for each named beneficiary, petitions with more named beneficiaries require more time and resources to adjudicate than petitions with fewer named beneficiaries. This means the cost to adjudicate a petition increases with each additional named beneficiary.”

The nonprofit arts community had also requested reinstatement of the Traditional Expedite, but DHS deemed the “expedite policy is outside the scope of this rulemaking. DHS may consider whether to provide expedited processing for certain petitions based on its workload in other areas and ability to meet promised deadlines.” 
 
Furthermore, while O and P petitions are very similar in nature, which DHS acknowledges, the agency rejected to request to designate one common form for O and P petitions, insisting on keeping P classifications as part of the new I-129MISC.

While the arts community pointed out the proposed fee schedule imposed a disproportionate burden on nonprofit arts petitioners, given the more than 50% increase to file O and P petitions, DHS claimes that it "does not intend to deter or unduly burden petitioners requesting workers in the arts, but any preferential treatment provided to petitioners for performers and musicians is borne by other petitioners, applicants, and requestors. DHS declines to require other applicants and petitioners subsidize the cost of petitioning for workers in the arts." However, given the "weighted average increase of 20%" for the fee schedule overall, the dramatic fee hike for arts petitioners would suggest these applicants are rather subsidizing other categories.

In spite of the clear economic harm and threat to cultural exchange these drastic fee hikes will bring about, DHS claims “evidence suggests that the additional fee in this final rule does not represent a significant economic impact on these entities.”