Can You Refuse To Pay A Non-U.S. Musician After The Concert?
We received this question from a desperate artist (the names have been changed to protect the innocent and/or culpable):
I am a musician on an O-1 visa that my agent got for me. It covers multiple engagements. Last September, I was hired to be a section musician with an orchestra. They have been paying me up until now, but now they are saying that legally they have to withhold my paycheck and can’t pay me because they just realized my visa does not name them specifically and I have to get another one just with their name on it if I want to get paid for the last two weeks. If I don’t, they say they have to fire me. They checked with their lawyer and he says its because their musician contracts require them to pay me as an employee and that my visa only covers independent contractors, not employees. He says that according the USCIS regulations [8 CFR 214.2(o)], employers must be listed on separate O-1 petitions where it says “employer” on the form. Is this true? I thought the O-1 allowed me to work for whomever I wanted because it was a multiple-employer O-1.
Sadly, we get this question a lot. To be fair, U.S. tax and immigration laws and regulations are a huge, big, stinking pile of insanity. Fortunately, most of the folks in our industry who work regularly with foreign artists make at least a valiant effort to figure out the rules as best they can, either by consulting experts or colleagues or through their own research. Unfortunately, there are others, be they forgotten in the bowels of a hugely complex institution or trapped in their own dark worlds of paranoia, anal retention, and over-simplicity, who do not. These include most, but, by no means all, of the following: (1) the international student officers and offices of most schools and universities; (2) the personnel directors of small orchestras; and (3) any non-profit with a volunteer attorney who only practices insurance law, but claims to be an expert on all subjects.
It appears that you have been dragged into the dark world of numbers (2) and, perhaps (3).
The O-1 visa category is not only available for artists, but also for the field of business, science, education, and athletics. Technically, the sodden-witted pignut at your orchestra is correct that, in most instances, an individual with an O-1 visa who works for more than one employer must file a separate petition for each employer. HOWEVER, he or she is ignoring the fact that USCIS regulations 8 CFR 214.2(o)(2)(iv)(D) provides an exception for artists (and ONLY artists) as follows:
In the case of a petition filed for an artist or entertainer, a petitioner may add additional performances or engagements during the validity period of the petition without filing an amended petition, provided the additional performances or engagements require an alien of O-1 caliber.
Moreover, for purposes of work authorization, USCIS does not make distinctions either between full-time and part-time employment or between employees and independent contractors. Why? Because as we try to remind everyone again and again and again and again and again: U.S. law requires anyone who “provides services” in the U.S. to have work authorization regardless of whether or not they are paid for such services. So, as a work visa is required even if an artist performs for free, the manner in which they are paid is irrelevant for immigration purposes.
Admittedly, what adds to the confusion is that USCIS requires the same USCIS form (i-129) to be completed not just for O-1 visa petitions, but for a whole alphabet of other visa petitions as well: E, H, P, L, M, R and Q, among others. Because of the government’s “one-size-fits-all” mentality, the i-129 form uses the broad term “employer” to cover every possible scenario in which one person can engage the services of another. In other words, USCIS does not use the term “employer” to refer exclusively to an “employer/employee” relationship.
The issue of whether or not an individual performing services for another should be paid as an “employee” or “independent contractor” is determined by various federal and state regulations, laws, and authorities, such as the Department of Labor and the IRS. USCIS is part of the Department of Homeland Security. Once it authorizes someone “to work”, it simply doesn’t care about how, or even if, they are paid. That’s not in its purview. Which means that, so long as your O-1 authorizes you to provide services to more than one entity, then you can be paid either as an employee or independent contractor. Your orchestra is not violating U.S. immigration law by paying you as an employee.
Amusingly, your orchestra is actually finds itself in even greater peril by refusing to pay you for work already performed. The same state federal and state regulations, laws, and authorities that determine whether or not someone is an employee or an independent contractor, also make it explicitly clear that it is illegal to refuse to pay someone for work already performed based on a claim that they violated immigration law. Its perfectly acceptable—nay, required—to refuse employment to or fire someone who is not legally authorized to work in the U.S. However, that does not apply retroactively. If the work has been performed, even illegally, the worker must be paid. Otherwise, unscrupulous employers would just hire foreign workers and then refuse to pay them. Work authorization and payment are to very different things!
So, there’s your answer. However, getting your orchestra to understand or accept this reality may not be easy. People in the aforementioned categories prefer simple answers to complex questions and are often loathe to accept nuance. So, here’s simple suggestion: Are you or your orchestra a member of the American Federation of Musicians? If so, stop reading this and call AFM now. Trust me, they will be more than happy to make this matter very simple for the orchestra indeed!
THE OFFICIAL LEGALESE:
THIS IS NOT LEGAL ADVICE!
The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!