The Intersection of Immigration and Entertainment Law

NYSBA Entertainment, Arts and Sports Law Journal

Summer 2013 | Vol. 24 | No. 2


Introduction

Artists seeking to enter the U.S. to engage in productions requiring their international talents have only so many visa options available to them: the H-1B, H-2B, P, and O, the last of which is most often the best option. The O visa, the visa for individuals of “extraordinary ability,” is going to be the best choice, one might even say the most extraordinary choice, but because there are potentially other options, this article will review them, even ever so briefly.

H-1B: The Visa Status for Skilled Workers and Models

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.

H-2B: The Useless Visa

The H-2B is essentially dead due to bureaucratic backlog and confusion between the Department of Labor and the Department of Homeland Security. Sadly, there is nothing more to say about the H-2B other than it was fun while it lasted, but the good times have since passed. Most recently, several courts have affirmed the moratorium on processing H-2B labor certifications, and so the U.S. Citizenship & Immigration Service (the Service), stopped processing them in March 2013. Since then, it has resumed processing all H-2B petitions for temporary non-agricultural workers, but the issues and confusion still remain.³ As such, for artists, the H-2B is gone.

P: Internationally Renowned Acts…Hello Siegfried and Roy

P visa classification is most often the visa of choice for musicians or athletes who are coming to the U.S. for a tour or season of play.⁴ The fundamental consideration at the outset is that “[t]he entertainment group […] as a unit must be internationally recognized as outstanding in the discipline and must be coming to perform services which require an internationally recognized entertainment group[…].”⁵ As such, it does not matter so much if the individual beneficiary has achieved international renown, but rather the group in which the beneficiary is part of must have achieved such recognition. To demonstrate this, the group must be able to demonstrate that it meets three out of the six designated criteria, as follows:

  • Performed and will perform as a starring or leading entertainment group in production or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements;
  • Achievement of international recognition and acclaim for outstanding achievement in its field as evidenced by reviews in major newspapers, trade journals, magazines or other published material;
  • Performed and will perform services as a leading or starring group 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 evidenced by indicators such as ratings, box office receipts, record, cassette or video sales, and other achievements as reported in trade journals, major newspapers or other publications;
  • Receipt of significant recognition for achievements from critics, organizations, government agencies or other recognized experts in the field; and
  • Commanded and will command a high salary or other substantial remuneration for services comparable to others similarly situated in the field, as evidenced by contracts or other reliable evidence.⁶

O: Individuals of Extraordinary Ability, Playfully Nicknamed “Extraordinary Aliens” or “Marvin the Martians”

Finally, we reach the O visa, the one status that labels the beneficiary as an individual of “extraordinary ability” and will most often be the go-to for the non-U.S. artist seeking to enter America in order to engage in his or her craft. The O visa comes in three possible classifications: O-1A (most often utilized for businessmen and athletes); O-1B (artists, entertainers, performers, and the like of extraordinary ability); and O-2 (an individual who provides integral or essential support to an O-1 holder). With each classification comes a specific set of criteria to satisfy and intricate considerations; however, for the entertainment or arts attorney who encounters an individual trying to enter the U.S. under O-1B status, here are some basic points to remember:

  1. The beneficiary’s qualifications must satisfy three out of six evidentiary categories unless he or she has received an award such as or on the level of a Grammy, Academy Award, or the like;⁷
  2. The petition requesting O-1B status must be lodged by a valid U.S. entity, individual, or U.S. based entity/individual acting on behalf of a foreign company;⁸
  3. The petitioner (a/k/a “sponsor”), must affirm that it has work for beneficiary throughout the duration of O-1 status;⁹
  4. The petitioner and beneficiary can have three different employment relationships:

    a. The petitioner can act as the sole employer of the beneficiary throughout the duration of O-1 status;

    b. The petitioner can act as an agent on behalf of multiple employers who seek to utilize the beneficiary’s extraordinary abilities; or

    c. The petitioner can both employ the beneficiary and act as an agent on behalf of multiple employers throughout the duration of O-1 status.¹⁰

  5. While there is no specified maximum number of times that an individual may be the recipient of O-1 status, the longest duration granted for any one petition is three years;¹¹ and
  6. The visa, once approved, belongs to the petitioner and not the beneficiary.

To round out this basic introduction to the O-1B visa, here are the categories mentioned at bullet point 1, of which the beneficiary needs to demonstrate satisfaction of three:

  • 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; and
  • A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence.¹²

You may hear reference to “comparable evidence” being utilized; however the Service has made it quite difficult to utilize that category by indicating that it will only be permissible “[i]f the above standards do not readily apply to the beneficiary’s occupation in the arts […, however] (this exception does not apply to the motion picture or television industry)” [emphasis added].¹³ As those categories above can work with nearly each and every area of the arts, comparable evidence is simply a moot point.

Of course, this only scratches the surface, thereby getting the arts-immigration juices flowing. Next time, there will be a more comprehensive overview of a key aspect of O visa status.

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. USCIS Resumes Adjudication of All H-2B Petitions Following Publication of Interim Final Rule, April 25, 2013, http://www.uscis.gov/portalsite/999uscisuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4cf5b6f39b14e310VgnVCM100000082ca60aRCRD&vgnextchannel=e7801c2c9be44210VgnVCM100000082ca60aRCRD.
  4. 8 CFR § 214.2(p)(1)(ii)(A) (2012); Section 101(a)(15)(P) of the Immigration and Nationality Act (2012).
  5. 8 CFR § 214.2(p)(4)(i)(B) (2012).
  6. 8 CFR § 214.2(p)(4)(iii)(A) (2012).
  7. 8 CFR § 214.2(o)(3)(iv) (2012).
  8. 8 CFR § 214.2(o)(2)(i) (2012).
  9. Id.
  10. 8 CFR § 214.2(o)(2)(i) and (v)(E) (2012).
  11. USCIS O-1 Visa: Individuals with Extraordinary Ability or Achievement, March 16, 2011, http://www.uscis.gov/portalsiteuscismenuitemeb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=b9930b89284a3210VgnVCM100000b92ca60aRCRD&vgnextchannel=b9930b89284a3210VgnVCM100000b92ca60aRCRD.
  12. 8 CFR § 214.2(o)(3)(iv)(B)(1-6) (2012).
  13. 8 CFR § 214.2(o)(3)(iv)(C) (2012); 8 CFR § 214.2(o)(3)(v)(B) (2012).

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

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