INS Issues New Rules for Foreign Performers : Arts: The proposal could make it more difficult for musicians, dancers and others to tour the United States. Arts groups hope the government will modify the new rules.

The Immigration and Naturalization Service issued proposed regulations on Thursday that would clamp significant new restrictions on foreign performing artists seeking to enter the United States.

The proposed rules, which in some cases will apply to foreign professional athletes and sports teams, would make it more difficult for most foreign performers--including rock bands, ballet companies, dance troupes, operas companies and symphony orchestras--to get visas to work in the United States and could touch off retaliatory actions against U.S. performing artists by foreign governments.

The new rules represent an attempt to implement a series of changes in visa rules that first came to broad public attention in May. Before they are scheduled to go into effect in October, the new rules are subject to a 30-day public comment period and arts groups said Thursday that controversy over the rules is certain to intensify.

But in the absence of major revision, the new rules would radically affect serious and popular arts. Under the rules, a British rock band whose drummer had joined the group less than a year before a planned U.S. tour or a French symphony orchestra that changed second chair cello players six months before its bookings could be barred from entering the United States.

The rules would limit foreign performers in two key visa categories to 25,000 per year and ban the filing of applications for visas until as little as 90 days before a scheduled tour. Those provisions, arts service groups have charged, would play havoc with the existing system of touring by a wide variety of performers.

In most categories, a written consulting opinion from relevant labor unions would be required before the INS could issue any visa--although the INS proposal specifically said unions would not have veto power over visa applications. Foreign artists trying to get U.S. visas would have to prove that they have achieved considerable fame--for instance, by winning a Nobel Prize, Academy Award or Emmy.

The rules, charged Opera America, a national trade group representing opera companies, would have precluded the America debuts of superstars such as Placido Domingo, Luciano Pavarotti and Kiri Te Kanawa.

Arts and organized labor groups, which have been negotiating over changes in a law--passed last fall--that provides for the new rules, said talks were continuing. Two weeks ago, however, the labor and arts organizations said they believed they had reached an accord sufficient to avert publication of rules as restrictive as those issued by the INS Thursday morning.

“This presents the possibility that many (performers) simply won’t be able to come into the country,” said Jonathan Ginsburg, a Washington lawyer who represents a coalition of major arts service groups, “either because they don’t meet the high standards (or prominence) or because (the numerical limit) has been exceeded.” Ginsburg said he hoped corrective legislation can be passed.

“I’m disappointed that the INS was as conservative as it seemed to be,” said Ginsburg, whose clients include the American Symphony Orchestra League, Dance USA, Opera America and the American Arts Alliance. For instance, he said, the immigration service made no provision that would allow for emergency substitution of personnel in an orchestra, dance company, opera troupe or rock band as a result of illness or injury to an established member.

Nick Counter, president of the Alliance of Motion Picture and Television Producers, said provisions of the proposed regulations that apply to television and motion picture production apparently do not represent a major departure from existing INS policy. But, Counter said, some problems remain for the movie and TV industries because the INS proposal leaves a variety of potential production situations unresolved in terms of visa eligibility.

For instance, Counter said, the proposal does not appear to provide for visas for an English film editor to come to Hollywood to work for an American director--although if the director was British and working in the U.S., the editor could easily accompany him or her under provisions of one visa category.

Likewise, Counter said, because the proposed visa rules allow for some visas only when a film had principal photography both in the United States and abroad, visas for post-production work on a film shot entirely overseas apparently are not permitted. Counter said negotiations between his group, film industry labor unions and the INS were continuing and that producers expect the technical problems to be overcome.

“It’s a long way from the finish line,” said Anne Murphy, executive director of the American Arts Alliance of ongoing negotiations to try to salvage an acceptable compromise in the new visa rules.

Mark Scorca, executive vice president of Opera America, said the rules indicated that “the INS has obviously decided to wait for public comments before really going to work on the regulations. We are encouraged at the momentum and the amount of support we have for our concerns. The comment period begins today.”

Ginsburg said he was concerned because the INS appeared to have ignored a letter sent to the agency last week by Sens. Edward M. Kennedy (D-Mass.), Alan Simpson (R-Wyo.) and Paul Simon (D-Ill.) that called the approach the immigration agency was about to take as “controversial” and “a radical departure” from existing U.S. cultural policy. Kennedy, Simpson and Simon charged that the ramifications of an immigration bill passed last October that provided for the new visa policies were misrepresented in terms of their effects on the arts after details of the legislation were hammered out in a House-Senate conference committee.

In a statement late Thursday, Simon said he, Kennedy and Simpson had asked Atty. Gen. Dick Thornburgh to issue an order lifting the 25,000-visa limit for at least 18 months and permit every foreign performer who meets visa requirements to enter the United States. Simon noted that the three senators have already proposed a variety of legislative and administrative changes in the law, although the Thursday INS rule proposal appeared to have ignored most of the suggestions. A spokesman said Simpson would introduce legislation later this month to overhaul objectionable provisions of the rules or at least delay their implementation for two years while Congress reconsiders the issue.

At the INS, spokesman Rick Kenney took issue with assertions that the new rules would make it more difficult for foreign performers to enter this country. “I don’t know if that can be answered” at this point, Kenney said. “This just makes (visa requirements) more specific. In the sense that the requirements are more specific to (individual areas of the performing arts), then they have to be more carefully met.”

Ginsburg confirmed that negotiations between the arts groups and the AFL-CIO to try to resolve differences between organized labor and arts presenters were ongoing. “I hope that we will be able jointly to approach (Congress) and say, ‘There are some real problems here,’ ” Ginsburg said.

Spokesmen for Kennedy, Simpson and Simon declined to comment on the Thursday action by the INS, saying staff members had not had time to analyze the 125-page text of the proposal. Jack Golodner, the Washington-based head of the AFL-CIO office with jurisdiction over arts issues, did not return calls seeking comments from labor groups.

In their letter to INS Commissioner Gene McNary, Kennedy, Simpson and Simon proposed leaving existing visa rules in place for a year while the Senate and House attempt to fashion technical amendments to change many of the most controversial aspects of the law that provided for the proposed rules.