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Thursday, December 10, 2009

Send Us Your Tired, Your Poor, But Only if They're 'Culturally Unique'

Immigration Caseworker AA0089 Has Some Thoughts About What Is Art


LOS ANGELES -- When Jordan Peimer booked an Argentine band that fuses Jewish Klezmer music with tango, he thought he had the perfect act to headline his "Fiesta Hanukkah" concert.

"It is hard to imagine any band more fitting than Orquesta Kef," says Mr. Peimer, the program's director at the Skirball Cultural Center here. The event was designed to attract a Jewish audience and the city's burgeoning Hispanic community.

Watch a clip of Argentina's Orquesta Kef.

That was before the U.S. Citizenship and Immigration Services weighed in with some cultural commentary of its own. The band couldn't travel to the U.S., the agency ruled, because it didn't satisfy a "culturally unique" requirement for a performer visa called P-3.

"The evidence repeatedly suggests the group performs a hybrid or fusion style of music...[which] cannot be considered culturally unique to one particular country, nation, society, class, ethnicity, religion, tribe or other group of persons," read the denial. It was signed by caseworker CSC4672/WS24533.

Mr. Peimer was incensed. "How more culturally specific can you get than Jewish music of Latin America?" he asked. After Mr. Peimer did some venting on his Facebook page, a reader quipped that this is the era of "ethnomusicalsecurity."

In fact, immigration law gives an anonymous group of government bureaucrats a lot of cultural clout: They can decide which foreign ballerinas, musicians and artists qualify as "outstanding," or special enough to deserve a visa to enter the U.S.

Ultimately, most applications are approved. Some organizations and promoters representing artists complain that official judgments of artistic merit are often arbitrary, however.

View Full Image
Argentinian band Orquesta Kef was denied a performance visa.
Orquesta Kef

Argentinian band Orquesta Kef was denied a performance visa.
Argentinian band Orquesta Kef was denied a performance visa.
Argentinian band Orquesta Kef was denied a performance visa.

Los Angeles concert promoter Grand Performances booked an Indian music ensemble called Jaipur Kawa Brass Band for a summer gig. U.S. consular authorities approved visas for six members of the band, but rejected two, including the band's only competent English speaker. No explanation was given. "U.S. Citizenship and Immigration Services processes the petition but State [consular office] must grant the visa," says a spokeswoman for the agency. "It is outside our area of jurisdiction." The State Department noted only that a common reason for refusal is a perceived intent by a non-immigrant visa applicant to immigrate to the U.S.

The U.S. sponsor for the all-male Brazilian hip-hop company Grupo de Rua applied for a P-1 visa, and submitted articles about the dance company's performances in Tokyo, Berlin, Paris and the Edinburgh Art Festival. Immigration officer number AA0089 requested "evidence the group had achieved international recognition and acclaim."

Immigration officials don't agree that appearances necessarily add up to that. "Being internationally acclaimed is not equivalent to performing on stages overseas," says the spokeswoman.

"We didn't know what to do," says Harold Norris, president of H-Art Management in New York. "We had to turn the whole case over to a lawyer" to get it approved, which it was, as the tour dates approached.

According to the Department of State Foreign Affairs Manual Volume 9, "internationally recognized" signifies "a high level of achievement in a field evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that such achievement is renowned, leading, or well-known in more than one country."

Artists who wish to visit the U.S. for a performance typically need a P-1 visa; a P-3 visa, issued to entertainers participating in a culturally unique program; or an O-1 visa, for individuals with extraordinary ability in the arts, education or sciences. Once a visa is approved, artists visit a local U.S. consular office to get it stamped in their passport.

Immigration authorities say that in weeding out applicants they deem marginal, they are simply carrying out the intent of Congress in creating the visa categories. The P category is meant to promote the exchange of culture and the arts. The O category is sometimes called the "genius visa. "

Each year, more than 20,000 O and P petitions arrive at the offices of Citizenship and Immigration Services in St. Albans, Vt., and in Laguna Niguel, Calif., where 28 adjudicators review them. The artists' requests represent a small fraction of the visa caseload. The California office alone receives more than 1.3 million visa applications each year.

Adjudicators work in a mustard-yellow federal building whose pyramid silhouette, evocative of ancient Mesopotamia, has been featured in Hollywood films, including "Outbreak" and "Coma." In the cavernous mailroom, visa application packets arrive by the truckload.

"I would like to highlight that USCIS adjudicators work arduously -- sometimes completing receipt, adjudication and consular processing of petition in a matter of hours," says the spokeswoman for Citizenship and Immigration Services. Though the examiners also tackle visa petitions for software engineers and lettuce harvesters, "they get specific training to understand specific visa categories," she says.

Their decision-making has confounded big-city operas and small-town dance companies alike. Asian, Latin American and European artists have been barred from entering the U.S., at times causing low-grade diplomatic tension.

"It is essential for countries like the United States and the United Kingdom to maintain open borders for arts professionals," says Carrie Annand, a spokeswoman for the British Council, which deploys talent around the world.

The officials' rulings have led to delays, cancellations and additional expenses for orchestras, museums and nonprofit arts organizations.

"A Berlin Wall against cultural diversity" is how Bill Smith of the Eye for Talent agency describes it.

When Mr. Smith tried to get a visa for Mexican indie band Los de Abajo, which already had visited the U.S. several times, immigration adjudicators asked him for some details about his own office: "Color photos should show both the inside and outside of all production, warehouse and office spaces with equipment, merchandise, products and employees clearly visible," said the letter of June 12, 2009.

"I dutifully complied," says Mr. Smith. "Then they denied the visa." The reason: "The group's biography indicates their music is a combination of music...," said the denial, and fusion music, it said, is not "culturally unique." The group had to cancel its tour.
Meet Canadian Dancer Ashley Werhun

U.S. immigration authorities initially refused to renew a visa for Ashley Werhun, a Canadian dancer with the Trey McIntyre Project. The Boise-based dance company secured a visa for individuals with "extraordinary ability" in the arts after applying a second time.

Canadian Ashley Werhun competed against hundreds of dancers for a spot in the Trey McIntyre Project of Boise, Idaho. The award-winning dancer entered the U.S. on a one-year O visa, and toured 35 cities world-wide with the troupe.

Determined to keep Miss Werhun, the dance company filed a petition last February to renew her visa for the next season. "We thought it would be a slam-dunk," says company manager Shawn Testin.

Instead, they received a request for evidence that Miss Werhun was exceptional in her field and superior to others in the troupe. In a company of only 10 dancers, "we couldn't say she is our premier dancer," says Mr. Testin. "Every one is just as important as the other."

Despite providing "hundreds of pages of evidence," according to Miss Werhun, the company got a rejection. She returned to Canada. The company reworked its choreography to account for Miss Werhun's absence.

It hired immigration lawyers to file a new application. To up its chances, the company enlisted Idaho congressman Walt Minnick to lobby.

In late November, Miss Werhun's visa was approved. She rejoined the company in midseason. All told, the visa endeavor cost the nonprofit organization more than $10,000, it says.

Write to Miriam Jordan at

Sunday, December 6, 2009

Keeping the Nobel Prize would violate the Constitution

Tad Armstrong
Wednesday, Dec. 02 2009
(Editor's Note: As part of our efforts to provide a variety of views on the
Commentary page, today we debut a monthly "Point of View" column by Tad
Armstrong, a lawyer in Edwardsville. In 2005, Armstrong was challenged by a
local resident to educate citizens about our Constitution. The informal
gathering turned into 3,000 pages of educational materials, five adult-study
clubs in Madison County and a student club at Edwardsville High School.
Armstrong, 58, envisions an ELL Constitution Club (Earn It, Learn It or Lose
It) in communities across the country. You can learn more by calling him at
618-656-6770 or visiting

Congratulations, Mr. President, but if you care about the rule of law, you'll
have to fork over the Nobel Peace Prize within 60 days of accepting it next
week. Contrary to Mel Brooks' pronouncement in "History of the World Part I,"
it's not always good to be the king. It's impossible if you are an American

Article I of the Constitution states: "No Title of Nobility shall be granted by
the United States: And no Person holding any Office of Profit or Trust under
them, shall, without the Consent of the Congress, accept any present,
Emolument, Office, or Title, of any kind whatever, from any King, Prince or
foreign State."

Clearly, the presidency is both an office of "profit" and of "trust" and the
prize package (including 1.4 million clams) is included in the terms "present"
or "emolument." Therefore, a sitting president cannot accept it from a "King,
Prince or foreign State" without the consent of Congress.

While the Prize comes from the private Nobel Foundaation, Alfred Nobel left
instructions in his will that winners would be selected by a "committee of
five" appointed by the Parliament of Norway. There is no question that the
intent of Article I and a 1966 law passed by Congress is such that this prize
is "from a foreign State."

What does "consent of Congress" mean? It could be argued that there must be
specific consent of Congress for this prize to be accepted, which Congress has
not provided because, no doubt, most of its members don't have a clue it is
constitutionally required.

But in 1966, Congress passed a law dealing with the receipt and disposition of
foreign gifts and decorations, including those that fall into the lap of a
sitting president. That alone would bar the president from accepting the prize.

That law, now Section 7342 of the U.S. Code, provides that unless Congress
provides specific consent to the president to accept the prize and changes the
rules for its disposition, the prize must be accepted "on behalf of the United
States of America" and the $1.4 million must be turned over to the Treasury.

Did I hear someone say: "Cheap shot! After all, the President graciously
announced that all of the money would be donated to charity. He won fair and
square. Let him experience the joy of giving."

The framers included these Constitutional provisions to send a message to other
nations that they need not offer bribes to our president in the hope of gaining
political advantage, for we don't allow our leaders to accept them. Would
Norway expect Mr. Obama to embrace its global warming policy, for example? Come
to think of it, that might be a very good reason for Congress to consider
refusing the prize.

Additionally, because the money is not the president's to give away, he won't
be tempted to narrow his charitable giving to only those charities likely to
reward him with future campaign contributions. Does ACORN come to mind?

So, Mr. President, you took an oath to "preserve, protect and defend" the
Constitution "to the best of your ability." You cannot give the prize money to
charities of your choice. In fact, if you do not turn it over to the Treasury,
the law allows Attorney General Eric Holder to bring a civil suit against you
for all of the prize money plus $5,000. I'm not holding my breath.

Kings get to keep their spoils or designate their disposition, but you are not
king. Better fork it over. Your magnanimous decision to give it away is the
only cheap shot on the table. As a lawyer, an oath taker and the president of
the United States, you should know better.

To put all of this in extra-legal perspective, just prior to his death when
Congress was considering awarding President Harry S Truman with the Medal of
Honor, he said he was thankful, but would not accept an award meant for bravery
in battle. He also turned down lucrative corporate positions offered to him
after he left office. He said:

"I knew they were not interested in hiring Harry Truman . . . they wanted to
hire . . . the former president of the United States. I could never lend myself
to any transaction, however respectable, that would commercialize on the
prestige and the dignity of the office of the presidency."

Are there any such statesmen left?

Saturday, December 5, 2009

Afghan Surge Sing Along

Afghan Surge Anthem and Sing Along
by Bill Dyszel
(to the tune "The Caissons Go Rolling Along"

Soon our troops, every man,
Will get to Afghanistan,
Then we'll turn right around
And come back.
If we try not to blink,
We might see the Taliban,
Which we wont have,
The time to attack.
When they ship your ass
To the Khyber pass,
You'll see!
It isn't Bali Hai!
It's a stinkin 'hole
Nobody controls,
So of course,
They'll send in the G.I.s

Man and Religion

Wednesday, December 2, 2009