ENTERTAINMENT IMMIGRATION: The Employment-Based Immigrant Visa for Individuals of Extraordinary Ability

NYSBA Entertainment, Arts and Sports Law Journal

Fall/Winter 2014 | Vol. 25 | No. 3


In the last issue, we began our discussion of immigrant visas, those high-ranking immigration classifications more commonly known as green cards. As a refresher, those immigrant visa classifications are divided up into several employment-based (EB) categories: EB-1, EB-2, EB-3, EB-4, and EB-5. Each number denotes a “preference,” and within some of those preferences, there exist a handful of more precise occupational categories.

In this installment, we will be taking up the EB-1, as it is the most important of the immigrant classifications for the entertainment, arts, or sports law attorney to be aware. We move on, for we have so much time and so little to do…. Strike that. Reverse it. Thank you

Employment-Based Immigration: First Preference

EB-1 classification is intended for individuals who possess extraordinary ability in one of a variety of broad disciplines; are an outstanding professor or researcher; or are a multinational executive or manager.² For our purposes here, the most important category is commonly referred to as “EB-1A”: individuals of extraordinary ability; however, we will touch upon those others as well.

It is important to note that regardless of the occupational category, the bar is set quite high for the applicant or beneficiary to achieve an immigrant visa. It is not nearly as attainable as one of our non-immigrant visas (e.g., O, L), and the reason for this is policy driven: By conferring immigrant status on an individual, that person is entitled to live, work, and play freely. These being significant benefits, it is understandable that the Department of Homeland Security and the U.S. Customs & Immigration Service (the Service) want to be careful about upon whom they confer such authorizations. Those agencies do take the scrutiny to the next level at times, though, and in particular, this impacts our individuals of extraordinary ability quite often.

Individuals of Extraordinary Ability

For those who have been read previous articles in this series, this should look like the O-1 visa, and that is for good reason: It is essentially the permanent (immigrant) version of that temporary (nonimmigrant) classification. Being that it looks like the O-1 visa, it should not be surprising that the fundamental requirements are:

1. That the applicant must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim; and

2. That must be recognized in the applicant’s field through extensive documentation.³

In order to extensively document his or her extraordinary abilities, the applicant must demonstrate either a one-time achievement or at a minimum, three of 10 of the list below.⁴ Absent a Nobel Prize, Olympic medal, Pulitzer Prize, Oscar, or an award of that magnitude, a “one-time achievement” is not going to be demonstrated.⁵ For the vast majority of applicants, however, the likely course of action is the three of 10 categories, reproduced here with comments where necessary:

1. Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence;

• Comment below.

2. Evidence of the applicant’s membership in associations in the field which demand outstanding achievement of their members;

• Comment below.

3. Evidence of published material about the applicant in professional or major trade publications or other major media;

• Pay particular attention to the fact that this is published material about the applicant, rather than by the applicant. This is one of those instances where the reviewing agents are usually dogmatic. You might question why this is stressed, as; “about the applicant” certainly sounds clear enough, but that plenty of practitioners will try to sneak one by the Service.

4. Evidence that the applicant has been asked to judge the work of others, either individually or on a panel;

• These should be large-scale or quite exclusive. For example: Should an applicant have been a judge at the Queens County Farm Museum’s Fall Fest Craft Fair, this judging should certainly be submitted, but with several other examples that are objectively more exclusive.

5. Evidence of the applicant’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field;

• Comment below.

6. Evidence of the applicant’s authorship of scholarly articles in professional or major trade publications or other major media;

7. Evidence that the applicant’s work has been displayed at artistic exhibitions or showcases;

8. Evidence of the applicant’s performance of a leading or critical role in distinguished organizations;

9. Evidence that the applicant commands a high salary or other significantly high remuneration in relation to others in the field; or

• This should be evaluated with both anecdotal and objective evidence from primary sources. Worth noting is that the federal Department of Labor standards will not suffice to demonstrate this.

10. Evidence of the applicant’s commercial successes in the performing arts.

• The vagueness of this category makes it very dangerous and what will constitute evidence of success will vary significantly, but a general benchmark to look at could be gross sales of an applicant’s album, single, film(s), concert(s), or like information.⁶

In practice, the arts attorney should disregard Numbers 1, 2, and 5 as the dominant bodies of evidence, and pay closer attention to the others. In the case of 1, I have yet to find out what the Service is looking for with this, but will be so very excited when I do. For body of evidence 2, there are few, if any, associations that will satisfy the Service. In the case of bullet 5, if your client has achieved this and it can be documented, then by all means it should absolutely be pursued; in most instances, however, this will not be the case and what will be alleged to be “original scientific or scholarly research contributions” will be downplayed by the Service. As a brief practice pointer, basing the strength of the application on any of these three, individually, together, or as one third of a combination, will set up your client for a bit of heartache when a difficult request for evidence (an RFE) is sent back from the Service.

Additionally, whether the individual can achieve immigrant status under this basis is not always in line with whether receipt of that status is logical. Once an individual receives immigrant status, a green card, he or she is deemed a “lawful permanent resident,” or LPR. Once an individual is an LPR, there are other issues that can arise, the most important of which is tax implications.⁷ This will need to be addressed separately and individually.

With that, we have wrapped up our initial foray into the EB-1A, also known as “The Extraordinary Ability Green Card,” or O-1 on PCP. There will certainly be more about this, as it is quite a dense area that pops up frequently in discussions with non-U.S. citizen clients. (And I know what you are all thinking, “The suspense is terrible… I hope it’ll last.”⁸)

Endnotes

  1. WILLY WONKA & THE CHOCOLATE FACTORY (Wolper Pictures, Ltd. 1971), available at http://www.imdb.com/title/tt0067992/quotes.
  2. Employment-Based Immigration: First Preference EB-1, USCIS (Sep. 10, 2013), http://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-first-preference-eb-1.
  3. Id.
  4. Id.
  5. It is worth noting that the Service has indicated as acceptable examples of a “one-time achievement“ the following: “Pulitzer, Oscar, Olympic Medal.” Though not exhaustive, you can see the caliber of what the Service is looking for to satisfy the criterion.
  6. See USCIS, supra note 2. The comments are mine, and mine alone. The elements, however, belong to the Service.
  7. If you are wondering what I am referencing about taxes, the short version is that once an individual becomes an LPR, he or she becomes a bona fide green card holder, designated as a U.S. resident, which makes that individual’s worldwide income subject to U.S. taxes. There are, of course, exceptions and the like, but that is the overarching concern regarding taxes.
  8. WILLY WONKA & THE CHOCOLATE FACTORY (Wolper Pictures, Ltd. 1971) available at http://www.imdb.com/title/tt0067992/quotes.

Article originally written in Entertainment, Arts and Sports Law Journal and is republished here with permission from NYSBA.

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