Immigration and the Fine Arts: The Need for Congressional Action

Historically, Congress has paid little attention to fine artist immigrants. When the broader art world's immigration needs are addressed at all, the emphasis has been on those of performers: musicians, stage and theater actors, and their supporting staff. Performers benefit from well-organized unions and employer associations able to act more or less collectively to advance their immigration interests. In contrast, the nature of the fine arts world—highly individualistic, intellectual, and a bit quirky—ensures that its immigration needs are almost never effectively raised in Congress.

Consequently, foreign national fine artists have a tough time obtaining an "American experience" long enough to give them real insight into our beautiful, perplexing and fascinating country, and to also contribute something to America's artistic milieu. The same may be said for the supporting cast of individuals who are so critical to the contemporary art scene, ranging from gallery and museum assistants to primary and secondary school teachers, professions that often provide part-time work for artists, work that previously could be utilized by foreign national artists to remain legally in this country. (See, H-1B discussion below.)

Everyone concerned about contemporary art in American today should be interested in the impact of immigration laws on our nation's exposure to foreign national fine artists and their work.

In the hope this may prove useful, here's a very brief introduction to the various "non- immigrant," temporary visa stratagems currently available for fine artists and those who love art to come here, along with a call for action by Congress:

1. Student status - those who can afford the cost of attending school full-time in the U.S., without working "on the side," can seek admission to one of the many academic programs approved by U.S. Citizenship and Immigration Services for enrolling foreign students. This could prove unworkable for many, for a variety of reasons, including program suitability, cost, school location/reputation, etc. However, for those who can afford it, and are accepted into a desired program, utilizing the F-1 or J-1 status to attend undergraduate or graduate school can make sense.

2. Trainee status - the "J-1" is also available to those who have either, (1) a degree or professional certificate from a foreign post-secondary academic institution, and at least one year of prior related work experience in his/her occupational field acquired outside the United States, or (2) five years of work experience outside the United States in his/her occupational field, and who enter the United States to participate in a structured and guided work-based training program in his/her specific occupational field. Maximum length of stay is 18 months.

3. "O" ("extraordinary ability or achievement") status - for the established artist—or the up-and-coming artist with a substantial number (10 to 15, minimum) of well-credentialed supporters willing to back them up with glowing reference letters—the O-1 can be a great thing, enabling the qualifying artist to remain here initially for three years, and thereafter renew their allowed period of stay ad infinitum in one-year increments. Unfortunately, many promising young people simply do not yet have the resume and the contacts necessary to secure an O-1.

4. H-1B, temporary employee status - for the up and coming artist or art's professional without 10 to 15 well-credentialed supporters willing to back them up with glowing reference letters, the H-1B can provide a versatile option. The H-1B is available for part-time or full-time employment in positions that ordinarily require at least a four-year university degree, by individuals who have either a relevant degree, or sufficient "progressively responsible" experience in the academic area that can be substituted for the relevant degree. H-1Bs are suitable for positions as:

Artist's assistants
Gallery and museum assistants
Primary and secondary school teachers
Creative positions in a wide-variety of fields and industries

The suitability of the H-1B for foreign national artists to work as teachers is particularly noteworthy, as a strong presence of the fine arts in schools is very beneficial to the education of our children. Three recent studies funded by the Department of Education demonstrate that children exposed to the arts achieve better results in six areas of critical thinking, including interpretation, comparison and flexibility. ("Arts, Briefly; Adding Up Art," by Randy Kennedy, New York Times, March 10, 2007.)

However, use of the H-1B is severely constrained by the congressionally-mandated quota, first instituted in 1990. While initially this "cap" exceeded demand, this year (2008) the H-1B quota was oversubscribed by a factor of two within days of its early April filing deadline, creating enormous frustration for employers, and pretty much shutting out H-1B opportunities for many creative types. Few employers are willing to commit to the H-1B for a foreign national, knowing they must make a hiring decision 7 to 8 months in advance of the desired employment "start date" and that their H-1B petition will be subject to a "lottery" system in which less than 50% of employers are successful!

The low H-1B quota adversely affects the ability of foreign national fine artists and associated creative types to obtain a real, viable "American experience," and is "Exhibit A" in how America's fine arts leadership has been adversely impacted by U.S. immigration policy.

Those concerned about contemporary art in American today should ask Congress to assist the fine arts in our country by making the following improvements to the H-1B visa program:

1. Substantially increase the H-1B "cap";
2. Exempt from the H-1B "cap" museums and primary and secondary schools; and
3. Exempt from the high H-1B filing fees employers of artists, museum/gallery personnel, and teachers, since their employment does not raise any of the sciences, mathematics, engineering, or computer science public policy issues behind these high fees (see, Immigration & Nationality Act, §286(s),(5)), and these fees have an adverse financial impact on arts employers.

If our country is to remain a vibrant part of the international fine arts community, and if its children are to have the best opportunities for developing critical thinking, Congress must improve the H-1B program while keeping the fine arts and education in mind.

—Adrian R. Halpern, Immigration Attorney, Chapel Hill, N.C.