New York Lawyer's Legal Updates

O Non-immigrant Visa: Basic Classification And Requirements For Artists And Entertainers

Author: Visa Lawyer Alena Shautsova

The O visa classification was created for those who were not covered by the H1B work visa category and did not have to jump through hoops of Deportment of Labor. An O Visa can be a great alternative to other business and work visas. The benefits of the O visa process are absence of a “cap” (which is recently was reached the same day USCIS allows for the H-1B petitions to be submitted), absence of prevailing wage requirement, and a one year –in-advance filing rule.

An O-1 Visa Category can be issued to individuals with extraordinary ability in the sciences, arts, education, business or athletics who demonstrated a sustained national level of achievement or were acclaimed internationally. This requirement is heavily standardized in all of the fields except for the arts, i.e. artists and entertainers. This is not to say that anyone who has made a self-portrait in art class can qualify for an O-1 Visa, but the presumption is that an artistic achievement tends to stay “current” longer than, an athletic one.

The field of arts is vast, with the greatest potential for ever metamorphic evolutionary aspects. Thus, "art" in the context of US Immigration Law is expressed as "any field of creative activity or endeavor." The most common forms of art include fine, visual, culinary and performing arts. However, the law was devised in such a way to conjure expansion. For artists unaffiliated with motion pictures or television the word "extraordinary ability" implies a different meaning then that of the other four categories.

It means that eventually, the O visa application becomes an art in itself, with an attorney and the applicant trying to present the petition in a way it would "fit" in the frames of massive USCIS regulations and definitions.

Distinction

Distinction in the field of arts is evidenced by a renowned, leading, or well-known ability in the field of arts. To prove "distinction," the applicant must show at least three of the following six criteria:

  • Has performed in a lead starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by media articles, testimonials, etc.
  • Has a record of major commercial or critically acclaimed success.
  • Has commanded or will command a high salary/other remuneration in relation to others in the field.
  • Has achieved significant recognition from organizations, critics, government agencies, recognized experts.
  • Has performed/will perform services as a lead/starring participant in productions/events with distinguished reputations as shown by critical reviews, ads, publicity releases, publications, contracts, or endorsements.
  • National/International recognition for achievements through critical reviews, other published materials by or about the beneficiary in major papers, trade journals/magazines, etc.

For motion picture and television artists, the evidence requirements are the same, however they are held to a "higher" standard and comparable evidence should be used only if completely necessary. Although every O-1 applicant can have an "established agent" file the petition, it is most commonly used for those in television industry, as it gives the opportunity to work for multiple organizations without the need to file for each one individually. For example, if an actor or actress were to finish Movie A and a different organization wants to hire them for Movie B, legally speaking, the actor or actress would have to file a separate petition for Movie B. The only exception to the rule of separate petition for spate employer is if the actor originally had an agent file for him/her, rather than Movie A’s organization.

18 January 2016
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