PROPOSED INS RULES SPARK FREE TRADE-PROTECTIONISM DEBATE

Times Staff Writer

Julio Iglesias, Luciano Pavarotti and Michael Caine don't have much trouble getting visas to perform in the United States.

But a proposed overhaul of Immigration and Naturalization Service visa rules has made scores of lesser-known foreign artists, performers and entertainment technicians the focus of something akin to a protectionist-free trade battle between U.S. unions and arts promoters.

The INS hopes to soon put in place its first set of clearly defined rules for granting visas to members of the entertainment industry, an attempt that has made it the target of a cross fire of criticism.

At one end, arts organizations, promoters and movie producers claim that the proposed rules will create a system that favors established artists while raising tougher barriers for new, exotic and controversial foreign artists and performers.

"I see it closing a door," said an executive of a fine arts managing firm who did not wish to be identified because he and his clients depend on the INS for visas. "Our so-called 'international exchange' is in jeopardy. That's what we (as a business) are all about."

Lined up on the other side are film and theater industries unions. They say the rule changes are far too lenient and threaten the jobs of organized U.S. professionals, many of whom are already under- or unemployed and run into roadblocks when they seek work in other countries.

"All of the arts community would like a free cultural interchange, but Canada, England and Australia routinely prevent our members from being hired in their countries," said Bruce C. Doering, business representative of the International Photographers Guild, Local 659.

Trying to find a middle ground is the Immigration and Naturalization Service. "No question," said INS spokesman Duke Austin, the response to the proposed changes has been "considerable, more than for any routine rule change."

One of the key points of contention is the INS redefinition of "distinguished merit and ability," the main criterion upon which temporary H-1 work visas are granted. The new rules would require applicants to prove "preeminence" in their field, rather than above-average talent.

The proposed regulations would continue to authorize the INS to grant the coveted H-1, a work permit of 60 days or more, to artists and entertainers ranging from opera stars and reggae bands to ballerinas and screen actors.

The rule changes are based on guidelines established in the controversial McCarran-Walter Immigration Act of 1952. Passed by Congress over President Truman's veto at the height of the McCarthy era, the act gives wide visa-granting authority to the INS.

The INS views the proposed regulations as an attempt to codify agency rules and procedures that have evolved over the years from a patchwork of policy directives and INS court rulings.

The complex rules, which are still open to public comment, are subject to the final approval of INS Commissioner Alan Nelson, who is expected to issue a final set of regulations sometime in May.

INS officials acknowledge that they have traditionally exercised great discretion in applying the standard of "distinguished merit and ability."

In recent years, however, the INS has begun tightening its operating procedures. Visa adjudicators are now required to obtain an "advisory opinion" from entertainment industry unions in cases when an applicant's name alone is not sufficient to win approval. This has pleased the unions but has brought criticism from arts organizations and promoters, who say that the unions have too much influence over the INS.

"What's happening is, the (INS) is not making an independent determination," said immigration attorney Angie Rados, who lost director Robert Altman's bid to hire two French cameramen last year in the face of strong union opposition. "In effect, rather than filing our petition with the federal government, we might as well send our application directly to the union."

The INS also has toughened its definition of "distinguished merit and ability." Since applicants must now demonstrate artistic "pre-eminence" in their respective fields, the way has been opened for adjudicators to measure performers according to supposedly more objective criteria of best-selling records and box-office receipts.

But ticket sales are not necessarily a measure of talent, argues Robert J. Fitzpatrick, former director of the Olympic Arts Festival and director of the Los Angeles Festival scheduled for September. Commercial standards discriminate against those artists and performers who do not receive wide public exposure by virtue of their disciplines or a lack of opportunities in their native countries, said Fitzpatrick, also outgoing president of CalArts.

The end result, he said, is that many artists and entertainers are trapped in a Catch-22 bind: They can't attain the levels of success the INS demands without first getting a chance to woo American audiences.

"It's arbitrary and bureaucratic," said Fitzpatrick. "It's the mentality of the functionary who simply wants to go by the book rather than make sensible judgments. A quantitative approach doesn't work when you are assessing artistic merit."

Like it or not, counters INS spokesman Austin, the agency is charged with setting standards and enforcing them.

"You look at the legislative intent of the H-1 visas," he said, "and it says that people who are pre-eminent in their fields should have an opportunity to come to the United States if they can prove they do not unduly compete with domestic labor. That doesn't mean that just anything is unique."

Austin said that between 2,000 and 3,000 H-1 visas are granted to foreign artists and entertainers each year. He couldn't estimate how many applicants are rejected, he said, because records of visa denials are scattered in INS offices throughout the country.

Dozens of immigration attorneys contacted by The Times said that visa denials have increased since the INS tightened its procedures. Initial rejection by the INS can be appealed, and decisions often are overturned, but Warren Leiden, director of the American Immigration Lawyers Assn. in Washington, said the appeal process is in itself a form of harassment.

"We call it the slow approval," Leiden said. "You have to appeal, you have to pay a lawyer, it ups the ante on playing the game. (The attitude is) 'We are not just going to give you the benefit of the doubt; it's going to cost extra money and extra time delays.' "

Austin acknowledged that abuses have occurred in the past and blamed them on the lack of uniform regulations. "Hopefully, these rules will eliminate that problem, which was fostered by the lack of codified regulations," he said. "That's precisely what we are trying to address here."

A wide range of organizations--including unions and national arts groups such as Opera America, the American Dance Alliance and the National Endowment for the Arts--have filed comments on the proposals. Recommendations range from asking the INS to respond to visa applications within 30 days to deleting the word major from supporting newspaper and trade-magazine articles that applicants must provide, and to requiring that INS officials inform the appropriate unions of all H-1 requests, even when the applicant's "distinguished merit and ability" are not in question.

Both existing procedures and the proposed rules reinforcing them require artists and entertainers to submit applications 90 days in advance. This requirement, critics say, fails to recognize that many promoters must book concerts on short notice and that the INS is often very slow to respond to visa applications. But, said the American Immigration Lawyers Assn.'s Leiden, the result of such delays and lack of flexibility often results in the loss of a job opportunity.

Christopher Tricarico, a former Times intern, contributed to the story.

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