The O-1 “Artist” Visa

america-1298036_1280The number of artists in the United States is significant. “Artists” as it is defined for immigration purposes at least. In fact, one of the most common visas is the O-1, also known as the Artist Visa. To be more precise, the O-1 visa is not reserved exclusively for artists, but for all those who can show extraordinary ability in certain fields, such as the arts.

The O-1 visa is destined for people who can demonstrate the following: 1) extraordinary ability in science, education, business, and athletics; or 2) extraordinary ability in the arts. This category is not limited to fine arts, performing arts and visual arts but includes any field of creative activity or endeavor. Photographers, designers, architects, writers and even hairdressers and chefs are all considered artists for immigration purposes and can qualify for an O-1 visa; or 3) extraordinary achievement in the motion picture or TV industries.

The difference among the three categories lies in the standard of proof. The most challenging cases are those for people with extraordinary ability in science, education, business, and athletics because they are reserved only for those who have risen to the very top of their field of endeavor, representing a very small percentage. A less stringent standard of proof is applied to those who try to make a case of extraordinary achievement in the motion picture or TV industries, where it is required that the O-1 visa beneficiary be outstanding, suggesting the beneficiary be well-known and exceptional. Finally, the category for people with extraordinary ability in the arts is the easiest to prove because a level of distinction is sufficient. To show distinction, beneficiaries need to present documentary evidence of their extraordinary ability in a specific field. To sum up, the art category is the broadest and the easiest to prove. As a result, it can be concluded that the United States, at least for immigration purposes, is an artist-friendly country.

There are further differences among the categories in the proof that needs to be presented to the United States Citizenship and Immigration Services (USCIS). More specifically, the first category, which is comprised of people with extraordinary ability in science, education, business, and athletics and grouped under the O-1A caption, is different from the other two (extraordinary ability in the arts and extraordinary achievement in the motion picture or TV industries), grouped under the O-1B caption.

To obtain an O-1A visa, the beneficiary is required to demonstrate that he or she has risen to the very top of his or her field by:

Evidence that the beneficiary has received a major, internationally-recognized award, such as a Nobel Prize, or evidence of at least (3) three of the following:

  • Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor
  • Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field
  • Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought
  • Original scientific, scholarly, or business-related contributions of major significance in the field
  • Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought
  • A high salary or other remuneration for services as evidenced by contracts or other reliable evidence
  • Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought
  • Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.

On the other hand, to obtain an O-1B visa, the beneficiary will have to show:

Evidence that the beneficiary has received, or been nominated for, significant national or international awards or prizes in the particular field, such as an Academy Award, Emmy, Grammy or Director’s Guild Award, or evidence of at least (3) three of the following:

  • Performed and will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements
  • Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications
  • Performed and will perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials.
  • A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or standing in the field, box office receipts, motion picture or television ratings and other occupational achievements reported in trade journals, major newspapers or other publications
  • Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the beneficiary is engaged, with the testimonials clearly indicating the author’s authority, expertise and knowledge of the beneficiary’s achievements
  • A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence.

It is worth noting again that there are two subcategories with different standards of proof within the O-1B: more stringent for people in the motion and television industries (outstanding) and easier to prove for those in the arts (distinction).

With regards to the proof needed, an O-1 case needs to demonstrate and provide evidence through publications, awards, and recommendation letters. Obviously, there are clear-cut cases that are easier to prove, but others that need to be “built” with a team-work between the beneficiary and a specialized lawyer.

In an O-1 Application, the Petitioner needs to be either a US employer or a US Agent. The first needs to be a person or a business that will exclusively employ the beneficiary. An employment contract or, at least, a summary of the terms of the oral agreement can provide sufficient evidence to demonstrate the employer/employee relationship. On the other hand, a US Agent can be in the relevant field and business as an agent and can file the petition without committing to exclusively employing the beneficiary. In these cases, it will be required to provide an itinerary of planned or proposed events.

The O-1 visa can be granted for the duration of the beneficiary’s participation in the event, up to three years, which can be extended for 1 year if the event is extended. That is, unless… the O-1 visa holder satisfies the requirements to become a US permanent resident prior. The O-1 visa indeed provides an opportunity to lead to highly sought-after and coveted “Green Card.”

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The O-1 “Artist” Visa

The H-1B Visa Season

Photograph of a U.S. Department of Homeland Security logo.

April 1st. This is the date booked on many agendas of foreigners living in the US. The reason is not a playful ‘April Fools’, as foreigners living in the US (and especially in New York) do not have a lot of time left for joking around. Every year, on April 1st, the United States Citizenship and Immigration Services (USCIS) starts accepting H-1B visa applications, which is the much coveted work visa (actually, there are also other visas that enable holders to work when specific criteria are met, but the H-1B is considered the most important work visa because it establishes a traditional employer/employee professional relationship).

After receiving an H-1B application, USCIS takes some time (typically a few weeks but it could even take more than a month) to evaluate an application. Even after obtaining approval, the beneficiary cannot start working prior to October 1st. The H-1B visa lasts three years and can be extended for additional three years.

Is getting an H-1B easy?

Not really. It has never been easy, and it has become even more difficult nowadays. Here’s why. First of all, there is a cap on the number of H-1B visas made available every year by USCIS: 85,000. More precisely, the number is even smaller for many foreigners: 20,000 out of 85,000 H-1Bs are reserved for those with advanced degrees obtained in the US, while 65,000 are open to others. Are 85,000 visas per year sufficient to meet the needs of US employers? Absolutely not. In fact, in a growing economy, the applications received by USCIS far exceed the number of available visas. For instance, in 2015, USCIS received in excess of 230,000 applications in the first week of April alone, three times more than the number of visas available.

To deal with such an excess demand, USCIS resorts to a computerized draft lottery that automatically decides which applications deserve to be evaluated (not approved), while the non-drafted ones are sent back without any consideration. In other words, in 2015, almost 150,000 candidates were left without a remedy, despite the fact that a US employer had offered each of them a position. That’s not cool! The job market is still very strong this first part of 2016. More than 200,000 applications are expected this year as well. There is no doubt that there will be a new lottery for the lucky. In Washington, there have been discussions by the Politicians to raise the cap. In fact, similar provisions were included in the immigration bill that was blocked in Congress a few years ago. The fact is, in the election year, politicians would rather not deal with a reform that may be construed by populists as anti-American. Perhaps only Frank Underwood could break the deadlock…

And what do the drafted applicants get? Very little. The simple right to have the application evaluated. In fact, USCIS will only approve an H-1B application when specific criteria are met:

1 – An employer/employee relationship must be in place. An independent contractor relationship is not sufficient. USCIS will verify whether the employer retains control over the employee’s activities and whether the employee is incorporated in the employer’s organization for tax purposes.

2 – The beneficiary needs to be employed in the specialty occupation consistent with her or his educational and professional background. In other words, USCIS opens the door only to skilled foreigners. Having a degree in the field of the offered position usually satisfies this requirement. Those who do not possess a degree could also qualify, however, USCIS has more stringent requirements in such cases: a professional license or a lengthy previous work experience in the field (three years of work experience is considered to be equivalent to one academic year) will deem an applicant eligible.

3 – The wages offered by the employer to the applicant must be at least average wages offered for similar jobs in the US. USCIS utilizes the data from the Department of Labor to assess this crucial requirement, which eliminates ‘frivolous’ applications, thus rendering the H-1B work visa a benefit reserved for most skilled foreigners.

In summary, the H-1B work visa is arguably one of the most desirable visas since it allows holders to work without any significant restrictions – as is the case with other visas – and offers the ability to easily change employers. On the other hand, as we have discussed, the H-1B visa is not easily obtainable. It is a visa reserved for those who are highly skilled with an added twist – they must also be lucky!

 

Michele Cea, Esq.         mcea@cebalaw.com

 

The H-1B Visa Season