Wilner & O'Reilly, APLC - Immigration Attorneys In California And Utah
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Can A Failed Concert Ruin An Artist’s (Immigration) Career?

Some concerts succeed and some don't. Of course, there are a number of reasons why concerts fail, just as there are a number of reasons why they succeed. More often than not, failure is a result of a poor promotion coupled with poor immigration lawyering. Understandably, if an artist can not obtain a visa to come to the United States, the concert will not go forward no matter how good the promotion. Yet, if the promoter is a reputable one, past performers and current events will normally result in the filing of an approvable entertainment related petition. So what it the artist has already entered the United States to perform and the concert is for all intents and purposes, a "flop". The question then becomes, how if at all will the current failure affect the artist's ability to obtain a future visa?

See, only top level artists may obtain visas to come to the United States to perform. As indicated in recent articles, such artists must be able to document at least three of the following: receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor; documentation of membership in associations in the field of endeavor which require outstanding achievements of their members; published material in professional or major media about the artist; participation on a panel or individually judging the work of others in the respective field of endeavor; original artistic contributions; performance in a lead or critical role for organizations or establishments with distinguished reputations; commanding a high salary or other significantly high re-numeration for services in relation to others; and evidence of commercial success in the performing arts as shown by box office receipts or records, cassettes, cd's or video sales.

Providing evidence of 3 of the above 10 is known as the "3 out of 10 rule". And, while only 3 out of 10 are required, it is better to provide more. As indicated above, one type of evidence the government likes to see is evidence of commercial success.

Have you ever been to a concert and noticed that the seats were full? This doesn't necessarily mean that ticket sales were outstanding. Instead, some promoters actually "dress up" the concert: they give away unsold tickets to fill the seats so that the artist isn't embarrassed. Artists may or may not know that such a practice is going on. Depending on the terms of their compensation agreement, if monies are tied to ticket sales, they will learn about the dress up soon enough. And, dressing up seats does not result in increased revenues that can be documented as evidence of commercial success. So, failure of a promoter to adequately do his job, may deprive an otherwise qualified artists from a necessary piece of evidence that would be submitted with his petition.

Venues are normally booked prior to visas being obtained and large scale concerts cost hundreds and thousands of dollars to put on. Obviously, it is terribly important that the visas are obtained for if they are not, substantial costs will be lost.

Effective immigration lawyering for artists requires that lawyers of distinguished reputation are involved at the very beginning. And, believe it or not, some promoters don't do their due diligence concerning the lawyers they hire. Some promoters know nothing about the reputation of their lawyers and in turn ask these same lawyers to file cases on behalf of their artists. In my opinion, this amounts to a terrible breach of fiduciary duty between promoter and artist and is actionable in a court of law under a breach of contract and negligent hiring causes of action at the very least.

To the artists and your management: make sure that your promoters have done their due diligence concerning the lawyers that they hire. If they haven't, you might not be coming to the United States to perform. If they have, no problem.

To the promoters: do your due diligence about the lawyers you are going to hire. Interview them. Ask them about what is required to submit an extraordinary ability case. Check out their reputation on the state bar website at www.calbar.ca.gov. If the case involves a California venue, I would recommend hiring only a lawyer that is admitted to practice law in the State of California.

A failed concert can result in difficulties in obtaining future immigration benefits just as a failed visa application will make it terribly difficult for future concert success stories. So, promoters, management and artists be careful. There are a number of good lawyers out there. Make sure that you hire one.

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