WYWH: Immigration Law and the Arts – NICE WORK IF YOU CAN GET IN

 

By Katherine Jennings

 

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Photo credit: Center for Art Law.

On March 9, 2017, the Center for Art Law held an Art Law Mixer addressing the timely and provocative topic of immigration issues confronted by immigrant artists with the recent issuance of EO 13769, among other anti-immigrant measures. The 45th President commenced his presidency with a barrage of Executive Orders (EOs) including EO 13769*, which was signed by Trump on January 27, 2017, and restricted travel to the U.S. from seven Muslim-majority countries and by all refugees. This EO has had far-reaching and devastating effects on immigrants including immigrant artists. It has wreaked havoc and confusion at the borders. Antagonizing foreign dignitaries, it has quickly been met with outrage and resistance by artist activists, art organizations, and lawyers.

 

The Georges Bergès Gallery, a stylish, SoHo gallery with an international focus, was the apt and welcoming site of the two-hour event, a first Center for Art Law (the “Center”) program to address immigration issues. It was composed of a wine and cheese reception and presentation by the founders of Lehach Filippa, an immigration law firm intended to serve creative professionals, followed by a Q&A. The discussion was moderated by Irina Tarsis, founder of the Center. Attendees included lawyers, artists and law students. After a brief warm up period during which attendees were encouraged “to talk to someone you didn’t come with,” Georges Bergès, the founder of the eponymous contemporary art gallery, spoke briefly to welcome all and to talk about the global perspective of his gallery. Bergès said his goal is to find authentic artists who are working in their own cultural context.

On to the substantive portion of the evening, Tarsis introduced Alejandro Filippa, Esq. and Michael Lehach, Esq, founding partners of Lehach Filippa. Lehach and Filippa spoke about the O-1 visa, commonly referred to as the “artist visa”, and the process of applying for work permits as a foreign artist. The current political climate and the effects of the anti-immigrant executive orders from President Donald Trump was also a topic of discussion. Filippa speculated that if the current precedent of an excessive number of executive orders is any indication, we will likely see more pushback and restrictions to immigration applications and processes in the future.

In order to qualify for an O-1 visa, or artist visa, an applicant must demonstrate “extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue to work in the area of extraordinary ability.” Extraordinary ability in the field of arts means “distinction.” The Immigration Act of 1990 (Pub.L. 101-649, 104 Stat. 4978) was a national reform of immigration that, among other things, excluded artists and entertainers (as well as athletes and nurses) from qualifying for H-1B visas. Two new categories, O and P, were introduced for extraordinarily skilled foreigners in the arts and sciences. The 1990 legislation was created in response to the Immigration and Nationality Act of 1952 (Pub.L.), aka the McCarran-Walter Act, which was meant “to exclude certain immigrants from immigrating to America, post-World War II and in the early Cold War.

Clearly, both Lehach and Filippa enjoy their law practice and are competent, dedicated professionals. Their passion was evident as they spoke about the process of creating a solid application in order to achieve success in obtaining an artist visa. Advocating for their clients is predicated upon a solid application with supporting documentation. Involved in facilitating artist visas and residence applications, they represent foreign creative professionals who want to work in the US and creative organizations seeking foreign talent to work in their US office. Their clients are from diverse industries such as the performing arts, music, fashion, film, photography, design, fine art, journalism and more. These “extraordinary aliens” have included tattoo artists, dancers, and rappers. The client may seek Temporary Work Visas and /or Permanent Residence based on Extraordinary Ability.

Lehach and Filippa outlined the proof needed to establish a valid application for an artist visa. In addition to a detailed resume, the client should include all relevant documents regarding their awards, notable clients, publications and press, and work history. An applicant must provide at least eight references by professionals who can attest to the extraordinary abilities of the applicant. Noting that an applicant’s file can be huge, they also spoke about how they have to be from important and respected sources. Lehach noted that it would not do a client any good if he were to provide his private residence as a gallery that would show the applicant artist’s work. Rather, the gallery must be a well-known and established entity.

Another crucial component of the application is an itinerary of the events and activities in the beneficiary’s field of extraordinary ability. You must have a plan of what you will be doing, with whom and when, and it has to be concrete. This constitutes the Sponsorship aspect of the application. For example, the applicant must provide an established list of galleries who will show his or her work and a concomitant timeline. An Employer, an Agency, or an Agent is an acceptable sponsor. Finally, it is helpful for the applicant to have a portfolio as a physical manifestation of the accomplishments detailed in his or her resume.

Lehach and Filippa also spoke about the case of an application for an Artist Visa being rejected. They said it is much better to refile, than appeal, because the immigration agents can be fickle. Noting that it can often be difficult to decide what constitutes extraordinary ability, they said it is crucial to initially establish a solid case. Their law firm also deals with other immigration issues such as obtaining permanent residency, obtaining a green card, and asylum issues, and extension of artist visas.

The presentation was followed by a lively question and answer session. Both presenters showed obvious delight in their chosen field and were quick to address each question thoughtfully. One interesting tidbit revealed during the Q&A was that under the right circumstances there is even a provision for bringing an artist’s muse into the country on a visa. As for the immigration ban that instigated the theme of the evening, “a judge sitting on an Island in the Pacific” ruled it unenforceable.

*Note that on February 3, 2017, EO 13769 was given a temporary restraining order in a decision from the Ninth Circuit of the Court of Appeals. EO 13769 was revoked as of 3/16/17.

About the Author: Katherine Jennings is a lawyer and contemporary realist oil painter living in New Jersey. She has a B.A. in History from Duke University and a J.D. from Fordham University School of Law where she was an Associate Editor of the Fordham International Law Journal. Having practiced intellectual property and immigration law, she is also certified as an Art Law Mediator with VLA. She was recently accepted into the Copyist Program at the Metropolitan Museum of Art and her work may be viewed at www.katherinejenningsfineart.com.

 

SPOTLIGHT: U.S. Immigration and Customs Enforcement

By Lesley Sotolongo

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In January 2003, the U.S. Immigration and Customs Enforcement (“ICE”) bureau was established as an agency within the U.S. Department of Homeland Security (HSI) to refocus homeland security inspection and investigation functions. ICE prides itself on being the largest investigative arm within HSI, providing “unparalleled investigation, interdiction, and security services to the public and to our law enforcement partners in the federal and local sectors.”

Among its many investigative functions, ICE plays a leading role in criminal investigations that involve the illegal importation and distribution of cultural property, specifically, objects that have been reported lost or stolen. Cultural property is defined by HSI as “movable or immovable property of importance to a cultural heritage, society, or nation.”

ICE has a special program dedicated to the retrieval of stolen works known as, The Cultural Property, Art and Antiquities Program (Program), with the largest office consisting of approximately twenty-six special agents located in New York. These agents are tasked with ‘promoting goodwill’ with foreign governments and citizens, while significantly protecting the world’s cultural heritage and knowledge of past civilizations. Under the Program, investigators are assigned to domestic and international offices to partner with federal, state and local agencies, private institutions, and foreign governments. Federal importation laws give HSI the authority to investigate crimes involving illicit importation and distribution of cultural property and art. ICE agents use customs laws under 18 U.S. Code § 545, such as smuggling, entry, and trafficking of goods into the U.S. through false statements,to seize cultural property and art and return it to the countries of origin.

According to Interpol, the third most profitable crime currently in existence is the trafficking of cultural property. It is estimated to be a $6 – $8 billion a year industry. Statistics available about the ICE activities indicate that since 2007, more than 7,150 artifacts have been returned to twenty-seven countries, including paintings from France, Germany, Poland and Austria, historical manuscripts from Italy and Peru, and also cultural artifacts from China, Cambodia and Iraq. ICE keeps a comprehensive list of works returned by HSI available on its website entitled Fact Sheet.

ICE Works: Poland Case Study

Most recently, a painting by Johann Conrad Seekatz Saint Philip Baptizing a Servant of Queen Kandaki looted from Poland during World War II (“WWII”) was returned to the Polish Minister of Culture and National Heritage, Bogdan Zdrojewski in a ceremony held at the Polish Consulate on February 6, 2014. This painting was one of those removed from the national Polish Museum in Warsaw by Nazi soldiers sometime between 1939 and 1945.

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It is well known that during World War II, millions of artworks were displaced and looted. Efforts to recover looted art began as soon as the war ended and have continued into the present, with new discoveries (see Gurlitt) and new claims being filed regularly (see Picasso in Germany and Pissarro in Oklahoma). Poland was one of the nations whose cultural heritage suffered terrible losses during the war. Today, the Polish MInistry of Culture is engaged in a systematic campaign to find and return as many of the lost cultural valuables as possible. Like Poland, other countries catalogue wartime losses and recent thefts. Once a country becomes aware of a particular missing artwork’s whereabouts, the country may place the information on the Interpol database which notifies special agents to further investigate it.

In the case of Seekatz’s Saint Philip, U.S. special agents met with Polish officials who provided supporting documentation to assist in the identification and recovery of this painting. Specific efforts to recover this painting date back to 2006, when a painting matching the description of the missing “Saint Philip Baptizing a Servant of Queen Kandaki” surfaced at auction at Doyle New York Auctioneers and Appraisers in October 2006. The painting was consigned and auctioned under an erroneous name to Rafael Valls Gallery in London for approximately $24,000. Investigation persisted, however, and after completing its investigation, ICE agents informed the Rafael Valls Gallery that it was in fact the looted painting belonging to Poland. ICE agents seized the painting in London and brought it to New York were it was repatriated to Poland. In summary, the investigation and return occurred over a period of seven years.

Seekatz’s painting is not the first Polish-owned artwork to be recovered by ICE. The agency spent years investigating other Polish wartime losses; it has repatriated three more works to Poland throughout the years of the Program’s existence including a Polish army pre-1939 Regimental Standard (Banner) and two Julian Falat paintings, The Hunt and Off to the Hunt also known as Before Going Hunting in Rytwiany. Moreover, ICE continues its mission of preserving cultural property and encourages anyone with further information to reach out to its agents. For more information please visit the ICE website at: www.ice.gov.

Those interested in working for ICE are encouraged to apply to its Presidential Management Fellows Program. Graduate students from any academic discipline who are expected to complete an advanced degree (i.e., master’s, law, or doctoral degree) from a qualifying college or university by August 31 of the current academic year are eligible to apply to the program. The ICE also has internships and a recent graduates program.

Sources:

ICE News

The Cultural Property, Art and Antiquities Investigation

ICE Fact Sheet

ICE Homeland Security Investigations: Efforts to Combat Illicit Trafficking in Stolen Art, Antiquities, and Cultural Property

DHS, “Border Reorganization Fact Sheet” (Jan. 30, 2003), available at http:// http://www.dhs.gov/dhspublic/interapp/press_release/press_release_0073.xml (announcing creation of ICE).

Images:

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NY Daily News

About the Author: Lesley Sotolongo, is a third year law student at Benjamin N. Cardozo School of Law. She may be reached at Lesley.Sotolongo@law.cardozo.yu.edu.

Disclaimer: This and all articles are intended as general information, not legal advice, and offer no substitute for seeking representation.