ENTERTAINMENT IMMIGRATION: An Introduction to Employment-Based Immigrant Visas

NYSBA Entertainment, Arts and Sports Law Journal

Summer 2014 | Vol. 25 | No. 2


In our last installment of Entertainment Immigration, we wrapped up our multi-segmented discussion of non-immigrant classifications; those visas that afford the non-U.S. citizen the opportunity to temporarily work or reside within the U.S. Those consisted of E’s, L’s, H’s, O’s, and variations of each.¹ Now we move onto those classifications that allow the non-U.S. citizen to live, work, and play in the U.S. without limitation: immigrant classifications. While we briefly touched upon the difference between non-immigrant and immigrant classes of visas, it may be useful to clarify once more here. Non-immigrant classes of visas only allow for the foreign national to reside in the U.S. for a temporary period of time under very strict guidelines. Immigrant classes allow the foreign national to have many of the freedoms and burdens (tax liabilities, for instance) of a U.S. citizen.

Officially, these immigrant classifications are referred to as “lawful permanent residence classifications.” Colloquially, however, whenever someone speaks of a “green card” or the like, it is in reference to these lawful permanent residence classifications.” You may hear of someone “having a green card,” “being a green card holder,” or “looking to get a green card.” The term green card is antiquated as the identification card(s) issued are no longer green. Regardless, that is how the vast majority refer to it and in keeping with presently held tradition, it continues. Worth noting, though, is that throughout this article I will refer to lawful permanent residence and green cards, sometimes interchangeably though not always, as there are slightly nuanced differences between the two.

Immigrant visa classifications are divided up into two realms: Family-Based Immigration and Employment-Based Immigration. Each refers to how or why the applicant/beneficiary² qualifies for lawful permanent residence. For our purposes, the only type of green card that we are concerned with is employment-based.

Within the Employment-Based system, there exist five primary groupings, properly referred to as preferences. This means that there is Employment-Based Immigration: First Preference (EB-1), Employment Based Immigration: Second Preference (EB-2), and so on and so forth to the Fifth Preference (EB-5).

Within each preference, there exist various categories of preference, all of which aid to further narrow the field of immigrant classifications and attempt to more precisely define the applicant/beneficiary’s qualifications. In order through each preference, they exist as follows:

    • EB-1…

– A—Person with Extraordinary Ability in the arts, sciences, business, education, or athletics;
– B—Outstanding Professors and Researchers; and
– C—Multinational Manager or Executive.³

    • EB-2…

– Advanced Degree Holders;
– Exceptional Ability in the sciences, arts, or business; and
– National Interest Waiver.⁴

    • EB-3…

– Skilled Workers;
– Professionals with a Bachelor’s Degree (or equivalent); and
– Other Workers.⁵

    • EB-4…

This is not likely to arise, though I include here the two types of qualifying individuals that may be of use with a more detailed list below.⁶

– Broadcasters; and
– Physicians.⁷

    • EB-5…

– Investor.⁸

Not all of these preferences will make sense for the arts/entertainment attorney to be aware of, and so we will avoid them in order to concentrate on the more applicable areas.

It should be noted, however, that under EB-2, while there are three bullet-points, in practice, there are only two categories with a third overlay. Under EB-2, there are those Advanced Degree Holders and those with Exceptional Abilities (not to be confused with extraordinary abilities). The National Interest Waiver designation is an add-on, so to speak, that elevates the beneficiary’s abilities to be so necessary, unique, or valuable that it is in America’s national interest to grant the individual a permanent residence.

Now that we have listed each of the preferences, we can easily point to the First Preference and see that this is likely to be encountered by the arts/entertainment practitioner.

Beginning with the EB-1A, we have what looks to be similar to the O-1 visa for individuals with extraordinary ability. The two categories are incredibly similar to one another and in practice, for the artist or entertainer under O-1B classification, the EB-1A is the logical trajectory as the O-1B holder reaches the point at which he/she decides to plant roots affirmatively in the U.S. and has amassed the necessary credentials for EB-1 success. Based on this, an understandable question would be, “Why not simply go straight for the EB-1A?” The most straightforward answer would be that most individuals will not qualify for the EB-1A, because the bar for receipt is incredibly high, though certainly attainable.

Moving now to the EB-1C for a brief moment, we recognize that this category is incredibly similar to the L-1A visa for business executives or managers. As with the EB-1A and O-1 relationship, the EB-1C is the logical trajectory for the L-1A holder who decides to plant roots in the U.S. for the long-term and most individuals either will not qualify for or will not want the EB-1C at the outset of their journey to the U.S.

Additionally, both EB-2 and EB-3 categories may arise from time to time, if not quite frequently, with the rise of the tech community and manufacturing throughout New York. Both of those preferences generally require what is known as PERM, Program Electronic Review Management, labor certification.⁹ Many individuals in finance, advertising, marketing, and software development who seek permanent residence will pass through PERM on their way to EB-2 or EB-3 status. The PERM process can be quite difficult and so if or when we take that up, it will be piecemeal and by way of one or more case study.

Lastly, the EB-5 program is growing by leaps and bounds, but will require even more time than the EB-2 and EB-3 PERM process discussion and we will not take it up here, but at a later point.

Having introduced our future friends of immigration, and because of their complexities and nuances, we will continue next time with the EB-1A and, should there be enough space, the EB-1C in our next installment.

Endnotes

  1. Michael Cataliotti, Entertainment Litigation: Skilled Workers and Models, Volume 25, No. 1 of the NYSBA Entertainment, Arts and Sports Law Journal, (Spring, 2014), 13.
  2. It is important to define the difference between an applicant and a beneficiary for these purposes so that there is no confusion. Taking first “an applicant,” he/she is someone who on his/her own behalf submits the paperwork to receive a desired classification (whether non-immigrant or immigrant). “A  beneficiary” is the recipient of the requested classification (whether non-immigrant or immigrant). Here is an example of each: (1) A globally renowned journalist who has broken stories around the globe through such outlets as CNN, Al Jazeera, BBC, and InTouch, and is frequently referred to as an expert on a variety of matters, wants to live, work, and play freely within the U.S. for an indeterminate amount of time. This journalist may directly apply to the U.S. Citizenship & Immigration Service requesting EB-1A status for his/her own benefit. This is also known as self-petitioning. (2) If a corporate entity that operates within the U.S. desires to utilize the services of an extraordinary music producer from France, it will submit a petition to the U.S. Citizenship & Immigration Service requesting that the French music producer receive the benefit of O-1B classification.
  3. U.S. Citizenship & Immigration Services, Employment-Based Immigration: First Preference EB-1, http://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-first-preference-eb-1.
  4. U.S. Citizenship & Immigration Services, Employment-Based Immigration: Second Preference EB-2, http://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-second-preference-eb-2.
  5. U.S. Citizenship & Immigration Services, Employment-Based Immigration: Third Preference EB-3, at http://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-third-preference-eb-3.
  6. Additional types of “special immigrants” who may seek EB-4 preference includes: Religious Workers; Iraqi/Afghan Translators; Iraqis who have Assisted the U.S.; International Organization Employees (e.g., employees of the WTO or World Bank); Armed Forces Members; Panama Canal Zone Employees; Retired NATO employees; and Spouses & Children of Deceased NATO employees. U.S. Citizenship & Immigration Services, Employment-Based Immigration: Fourth Preference EB-4, http://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fourth-preference-eb-4.
  7. U.S. Citizenship & Immigration Services, Employment-Based Immigration: Fourth Preference EB-4, http://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fourth-preference-eb-4.
  8. U.S. Citizenship & Immigration Services, EB-5 Immigrant Investor, http://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/eb-5-immigrant-investor.
  9. United States Department of Labor, Permanent Labor Certification, http://www.foreignlaborcert.doleta.gov/perm.cfm.

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

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