June 18, 2019
Hawa Kassé Mady Diabaté is the renowned Malian singer and griot who, in response to a Kronos Quartet commission, investigated the rural, handclapping-song tradition known as Tegere Tulon. These folk songs, which Diabaté sang as a child — in her village, by moonlight — are an all but forgotten source of local wisdom and cultural cohesion. The songs are also deeply affecting.
Diabaté, who has been to the U.S. many times, including a trip just a year ago, had been scheduled to participate in the Kronos Festival in San Francisco in early June. But her application was unexpectedly delayed and she was forced to cancel. The embassy in the Mali capital of Bamako had approved the visa initially, but then, three hours later, demanded Diabaté fill out DS-5535, the dreaded Dept. of State form that’s become part of the administration’s new policy of “Extreme vetting.” The information in the form takes great care in filling out; a wrongly checked box can be disastrous. In addition, the form may take up to seven months to verify. In Diabaté’s case, she will not be able to come to the U.S. until verification is completed.
This was the second time in two years that an appearance by an internationally known artist has been canceled at the Kronos festival. In 2018, a visa request from an Iranian composer, a woman living in the Netherlands, was denied. The executive director of Kronos, Janet Cowperthwaite, said the other day that the arbitrary nature of the process has begun to feel not only discretionary but “punitive.”
No doubt there are other factors in play, but one can only guess what they might be. The U.S. ambassador to Mali, Paul Folmsbee, is a highly accomplished career diplomat. He was appointed by President Obama in 2015 and stayed on under Trump. When he arrived in Mali there seemed to be a lessening of ethnic fighting following a regional peace agreement. But in recent months the struggles in central Mali have accelerated, along with a failing government. Some observers see the country as another theater in the “war on terror.” Ten days ago a massacre killed as many as 95 people, including many women and children.
Whether the violence is connected to a call for extreme vetting for visa applications in Bamako is unclear, but how ironic that Diabaté’s efforts to portray the nature of family and community reconciliation should be held back.
The World of Hallways and Drawers
The Immigration Industrial Complex, as it’s beginning to appear, includes various cultures, including law enforcement officers with U.S. Customs and Border Protection; diplomats with the State Dept., and bureaucrats with the U.S. Citizen and Immigration Services (USCIS). USCIS headquarters lie in the suburbs of Greenville, South Carolina, where Donald Trump won nearly 60 percent of the vote in 2016. The headquarters building is off Aaron Tipplin Drive. He’s the Country and Western singer who has written such patriotic songs as, “You’ve Got to Stand for Something.”
USCIS is under the Dept. of Homeland Security and has 19,000 workers spread across the world. On an average day, it adjudicates 26,000 requests for various “immigration benefits.” The two-step process to secure a visa includes getting a work permit from USCIS and then the visa itself from the State Dept.
At USCIS headquarters, in among the temporary worker classification files, in the cosmically vast databases of adjudicators, you’ll find artists and performers referred to as Ps, Qs, or Os. Ps include internationally recognized entertainers (P-1B); performers in a cultural exchange program (P-2); or those in a “culturally unique Program” (P-3). Diabaté’s application is a P-3.
You could also be a “Q,” which describes those trying for another kind of Cultural Exchange program. Or, you could be an “O” — individuals with “Extraordinary Ability of Achievement,” including scientists, educators, and athletes, as well as film and TV production people. Celebrities are included in this file.
The main criteria for adjudicating Os is acclaim; adjudicators particularly like it when you’ve won a big award. A Nobel Prize is a slam dunk. An Academy Award is good. A Tony is good. An award that nobody has heard of, no matter how distinguished in select circles, is not so good, particularly if the country you’re coming from is not well known culturally to an adjudicator. Countries in Northern Europe might be an example. Not to mention many Muslim countries. As one presenter said, “These days, if you have a Muslim name, much less coming from a country on ‘the list,’ you can pretty much forget being granted a visa.”
The Problem For Ps
According to USCIS H-1B data, approvals across the board, which are all that’s available, have gone down from 95 percent in 2015 to 75 percent in the first quarter of 2019. The number of RFEs (Requests for Evidence) issued over the same period jumped from 22 percent to 60 percent. And then this discouraging figure: Approvals after an RFE dropped from 83 percent to 61 percent.
It’s worth noting that these trends began during the Obama administration then accelerated in April 2017, following President Trump’s Executive Order, “Buy American, Hire American.” The idea was to ensure that H-1B visas were awarded to the “most-skilled or highest-paid” petitioners.
The severest problem for most nonimmigrant international musicians coming to perform in the U.S. is largely for the Ps. Consider, for example, P-1Bs, described as members of an “internationally recognized entertainment group.” The requirement is that three quarters of the group must have had a “substantial and sustained relationship” with the group for at least one year. Moreover…
Your entertainment group must be internationally recognized, having a high level of achievement in a field evidenced by a degree of skill and recognition substantially above that ordinarily encountered. The reputation of the group, not the individual achievements of its members or the acclaim of a particular production, is essential.
But then the problems begin, because of course this is all highly subjective. Critics say this is the inherent fault of the American system, where two people with identical qualifications may not be treated equally — as opposed to the U.K., for example, where in 2008 the immigration process was recast from “story-based” to a point scale. A degree is worth a certain number of points; your age may get you points, and your salary. In sum, in the U.K., you’re either eligible or you’re not.
In the U.S., you’re not only blocked by a system that may sometimes appear capricious, even spiteful, but more by the insatiable need for additional information. Hence the practice of “Extreme Vetting” and Form DS-5535, that two-and-a-half-page inquiry asking for a list of countries visited in the last 15 years; and for each trip, details about locations, dates, sources of income, and how long stayed. Then there’s the same in-depth inquiry about places lived and employers worked for.
In early June 2019, DHS expanded its data collection to include social media, asking for usernames and all platforms used in the last five years. Passwords are NOT included. The State Dept. says they need this additional information to validate identities and associations.
There is no argument against protecting borders, whether at the Rio Grande or at any of the 60 or so international airports in this country. Or at an embassy in Mali. As the State Dept. says, quite sensibly, “We are constantly working to find mechanisms to improve our screening processes to protect U.S. citizens, while supporting legitimate travel to the United States.” But the question is whether the system is fair and efficient, as well as transparent and consistent and whether its subjective nature could be used to irrevocably undermine privacy laws, and also be used to reflect, even normalize racial, religious, or, conceivably, cultural biases.
The Big Picture
Charlotte Slocombe is a partner at Fragomen, Del Rey, Bernsen & Loewy LLP, the world's largest firm devoted entirely to global immigration law. Slocombe, who has specialized in U.S. consular matters for the last 15 years in Europe, works in the London office and on the day we spoke a client had just received a 10-page Request for Evidence for their CEO: “One of the worst I’ve seen,” she said, noting the amount of detail now required and the sheer amount of time to fill out the forms. She added that intercompany transfers have worse approval rates than Os.
“It’s a lot harder now,” she said, “to get all the evidence lawyers need to submit a petition. People on the cusp of their careers will definitely find it harder than has been true historically. There’s also definitely profiling.”
Slocombe, who has handled many musicians, famous and not, says the category definitions and descriptions that worked a few years ago don’t now: “For example, what was deemed ‘extraordinary and exceptional’ back in 2001 is more difficult to establish. The same for what was deemed ‘special ‘or ‘managerial’ or ‘highly professional’…”
And how much is the Trump administration affecting these trends? “The automatic assumption among many people is that the reason it’s so bad now is because of Trump but the fact is it wasn’t working that well before. The system is broken. It’s archaic. The goal posts have shifted; the law has not. And it’s the same for businesspeople as well as artists. Someone may be well known in their field and done exceptionally well and have never had a problem getting visas to other countries. But now it’s become a real struggle. I think what really stresses people out is that the process doesn’t always make sense.”
Slocombe also has concerns about the new focus on social media and the government reach into private lives. She mentioned a recent incident involving a 24-year-old marketing manager from the U.K. visiting his girlfriend in Chicago. On April 24, he was stopped at the airport by immigration officials inquiring about his travel plans and how he intended to pay for them. Officials searched his phone and discovered a message he’d sent during a recent argument with his girlfriend: “In terms of a breakup, I don’t know what I’ve done to make you feel that way, and I think you forget that in a months time I am moving to be with you.” Officials told him that his apparent intention to “move” — not visit, which he denied — was enough to put him jail and deport him. He was also given a lifetime ban on visiting the country.
USCIS’s New Principal Deputy Director
Ken Cuccinelli, the former Attorney General of Virginia, was named the “Principal Deputy Director” of the USCIS on June 10. The title gives him the authority of an acting director and saves him from going through Senate confirmation. Cuccinelli is a long-time conservative who has challenged the constitutionality of the Affordable Care Act; argued against the constitutionality of same-sex marriages; and initiated legislation against climate scientists. He once retracted comments that seemed to suggest an Obama birthirism perspective. In 2016, he served as a campaign advisor to Texas Sen. Ted Cruz.
As for immigration, Cuccinelli is considered a “hardliner.” He has supported restrictions to birthright citizenship; opposed benefits to workers who don’t speak English; and encouraged the idea that employers speak English in the workplace. Nevertheless, despite his political appearance, in a senate confirmation process he would face genuine opposition from some Republican senators because he has backed primary challenges to certain GOP lawmakers, notably Sen. Majority leader Mitch McConnell. Hence, the value of his title as “Principal Deputy Director,” which needs no confirmation.
Whether Cuccinelli might allow or encourage ever stricter adjudication of Qs, Ps, and Os remains to be seen. And may depend on whether President Trump wins a second term.
Meanwhile, there is some modest pressure for positive change at USCIS. Heather Noonan is a V.P. for Advocacy with the League of American Orchestras: “Given the uncertainty of the process and particularly the length of time it takes, there is not a lot of room for artists to negotiate the visa process. We’re asking USCIS to put practices in place both at the two service centers (one in California; the other in Vermont) and at headquarters that will insure the process becomes more predictable, reliable, efficient, and affordable, because unless that happens performances will continue to be jeopardized.”
Cowperthewaite, Kronos’s executive director, believes the fear of these kinds of delays and denials will inevitably lead presenters to stop booking certain artists. And every day it seems new stories appear that would suggest the problem is getting worse. Just in the last month, there’s been an uptick of denials for performers coming from Africa, including groups from Mauritania, Nigeria, and Somalia, which is on the list of banned Muslim countries.
Would Kronos refuse to book someone from abroad next year, in a similar circumstance?
“Would I think twice?” Cowperthewaite replied. “Perhaps.”