ENTERTAINMENT IMMIGRATION: Skilled Workers and Models

NYSBA Entertainment, Arts and Sports Law Journal

Spring 2014 | Vol. 25 | No. 1


In our last installment, we discussed an array of options for those international artists, entrepreneurs, and corporate entities that may seek to enter the U.S. to initiate, develop, or expand their foreign presence. The array of options available to those individuals included E-1, E-2, L-1A, L-1B, O-1A, and O-1B. While we touched upon each of those to varying degrees, this installment of Entertainment Immigration is going to focus on the last of the non-immigrant categories, H-1B, as it relates to the arts.

H-1B—Skilled Workers and Models

Beginning with the H-1B, it is important to reiterate the information from the first Entertainment Immigration article titled “The Intersection of Immigration and Entertainment Law”:

The H-1B is generally inapplicable to most artists, but there are some—graphic designers readily come to mind—who will often qualify for the H-1B, thereby making it a feasible option for some. As a result, a brief overview of the options should suffice with the potential for a more detailed breakdown to come. The H-1B process requires three key considerations: (1) Does the prospective beneficiary possess a bachelor’s degree or equivalent; (2) Does the position in which the prospective beneficiary will work require a bachelor’s degree or equivalent, or can the position be filled by someone with an associate’s or practical training; and (3) Is the pay for the position equal or above that which has been determined by the Secretary of Labor (of the Department of Labor)?¹

Another way in which the H-1B may appear a bit more frequently for those entertainment or arts attorneys dealing primarily with fashion is in the representation of models,² but being that this is incredibly specific and limited, this topic will save for another article. It is important to note here the simple fact that the H-1B visa may be a viable option for a model, depending upon his or her credentials and supporting evidence.³

Skilled Workers

When working with a skilled worker, the baseline consideration is whether the worker’s talents coincide with one of those position descriptions that would be applicable for H-1B classification, while keeping in mind those three considerations above, as well as the individual’s job description and duties to be performed.

This can be accomplished by going to a combination of O*Net Online⁴ and the Foreign Labor Certification Data Center,⁵ but other means are acceptable as well.⁶ Once a suitable position description is found to correspond with the worker’s credentials and prospective employment skill level, the next step is to review the applicable prevailing wage and cross-reference this with the amount offered by the petitioning company (i.e., the worker’s prospective employer). There are certain additional types of compensation that may be factored into the overall wage package, but those are more nuanced, very specific, and beyond this article’s reach. If the amount offered meets or exceeds the prevailing wage for the worker’s position in the specific geographic location of work, coupled with the appropriate position description and qualifications, then obtaining a prevailing wage determination should be within reach.

With the preliminary determination of the applicable position description and salary satisfied, the next step is to obtain the prevailing wage determination by filing the necessary form, ETA Form 9141, with the Department of Labor⁷. If satisfactory and approved, the Department of Labor will issue an ETA Form 9035, Labor Condition Application, which should be added to the H-1B petition as part of the overall body of evidence.

In addition to the labor condition application, the additional evidence that must be submitted with a skilled worker petition includes, but is not limited to:

• USCIS Form I-129 with applicable supplement;

• A copy of the employment contract between the worker and the petitioner;

• Evidence of the worker’s education credentials, ideally a copy of the diploma;

– If the degree was procured from an overseas institution, the diploma should be translated and demonstration made that the degree is the equivalent of a U.S. bachelor’s degree. This can be done through various means, though is frequently satisfied by procuring an attestation from a professor or administrator with authority to grant credits in the worker’s field or a college credentials evaluation service.

• A copy of the worker’s resume;

• Evidence of the worker’s past projects to demonstrate competency in the area of specialty; and/or

• Published material by or about the worker.⁸

Now the timing: For H-1B petitions, United States Citizenship & Immigration Services (USCIS) operates on a fiscal year schedule. This means that once all of the forms are executed, the evidence compiled, and the cover letter detailing the bases for H-1B status completed, the application should be received by the USCIS Service Center on April 1st for a position commencing on or after October 1st of the same year. The only time when a worker does not fall under this limitation is when he or she is not subject to the cap on H-1B petitions, or put in immigration parlance, the worker is cap exempt. If the worker is seeking H-1B status for the first time, it is likely that he or she will be subject to the cap.⁹

Models

An H-1B petition for a model’s benefit still requires the prevailing wage determination,¹⁰ and as such, those provisions above under Skilled Workers are applicable here. Of course, they will likely be more straightforward and easier to determine, as a fashion model is likely to be employed under the position description, “Models.”¹¹

As per the applicable guidelines, the prominent model must “be coming to the United States to perform services which require a fashion model of prominence.”¹² This should not pose an issue, however, as due to the fiercely competitive and harsh world of fashion, a designer or artist can afford to have only such a model. More to the point, this may be shown if:

  • The services to be performed involve events or productions which have a distinguished reputation; or
  • The services are to be performed for an organization or establishment that has a distinguished reputation for, or record of, employing prominent persons.¹³

As an extension of this, it follows that the model must be one of distinguished merit and ability.¹⁴ According to the regulations, a fashion model of distinguished merit and ability is someone who is “prominent in the field of fashion modeling.”¹⁵ This may be demonstrated by setting forth two of the following categories illustrating that the model:

  • Has achieved national or international recognition and acclaim for outstanding achievement in his or her field as evidenced by reviews in major newspapers, trade journals, magazines, or other published material;
  • Has performed and will perform services as a fashion model for employers with a distinguished reputation;
  • Has received recognition for significant achievements from organizations, critics, fashion houses, modeling agencies, or other recognized experts in the field; or
  • Commands a high salary or other substantial remuneration for services evidenced by contracts or other reliable evidence.¹⁶

Additionally, a copy of the employment contract or a summary of such contract, by and between the petitioner (i.e., the employer or agent), and beneficiary (i.e., the model), must be submitted.

Now that we have touched upon all of the non-immigrant categories, in the next article we will move to the more robust world of green card applications and petitions.

Endnotes

    1. 8 CFR § 214.2(h)(4)(iii)(A)(1); (B)(1-3); and (C)(1-2) (2012).
    2. 8 CFR § 214.2(h)(4)(i)(A)(3) (2012).
    3. Michael Cataliotti, The Intersection of Immigration and Entertainment Law, 25 N.Y. St. B.A. EASL J. 2, 67.
    4. U.S. Dep’t of Labor, O*Net OnLine, http://www.onetonline.org/, (last visited Dec. 19, 2013).
    5. State of Utah under contract with the U.S. Dep’t of Labor, Foreign Labor Certification Data Center Online Wage Library, http://www.flcdatacenter.com/.
    6. Listed under “H-1B Prevailing Wages,” Question 1., Answer: “A wage rate set forth in a collective bargaining agreement (CBA); A wage rate for the occupation and area of intended employment under either the Davis-Bacon Act (DBA) or the McNamara-O’Hara Service Contract Act (SCA), which are available at http://www.wdol.gov; A wage rate produced by a survey conducted by an independent authoritative source that meets the requirements set forth in Departmental regulations at 20 CFR sec. 655.731.”U.S. Dep’t of Labor Employment & Training Administration, Foreign Labor Certification: OFLC Frequently Asked Questions and Answers – H-1B Prevailing Wages, http://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#prevailingwage.
    7. It should be noted that some of these pieces of evidence are listed under the equivalent degree section, but in practice, they are very useful to bolster the submission and ensure that the worker’s qualifications are truly understood. This is especially true with some of the more modern and complex positions involving 3D printing or pattern making. U.S. Dep’t of Labor Employment & Training Administration, Foreign Labor Certification Prevailing Wages (PERM, H-2B, H-1B, H-1B1, and E-3), Filing Process, http://www.foreignlaborcert.doleta.gov/pwscreens.cfm.
    8. 8 CFR § 214.2 (h)(4)(ii)(A)(1-4); (B)(1-3); (C)(1-4); (D)(1-5) (2012).
    9. However, if a worker is seeking H-1B for the first time, he or she will be cap exempt if he or she will be working at “institutions of higher education or related or affiliated nonprofit entities. nonprofit research organizations, or governmental research organizations,” http://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-fiscal-year-fy-2014-cap-season.
    10. This is the same prevailing wage that was discussed above by searching through O*Net OnLine and the Foreign Labor Certification Data Center Online Wage Library.
    11. This is available through the Foreign Language Certification Data Center Online Wage Library by running a search through the “Search Wizard.” The resulting link would be as follows for New York: http://www.flcdatacenter.com/OesQuickResults.aspx?area=35644&code=41-9012&year=14&source=1.
    12. 8 CFR § 214.2(h)(4)(i)(C) (2012).
    13. 8 CFR § 214.2(h)(4)(vii)(B) (2012).
    14. 8 CFR § 214.2(h)(4) (2012).
    15. 8 CFR § 214.2(h)(4)(i)(C) (2012).
    16. 8 CFR § 214.2(h)(4)(vii)(C) (2012).

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

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