There are many misconceptions about the O-1 Visa category, one of the greatest misconceptions is that it’s just for individuals in the ARTS. Such as individuals that are in front of the camera, working on a canvas, on stage, or in the studio working on something Artistic, or those in the motion picture or television industry. Actors, Musicians, Singers, Painters, Sculptors etc… Now, these might be part of a large group that come to the US every year on O-1 Visas, but it’s not the only group. We’ll save the question of what are the Arts for another post. The Arts are generally covered under the O-1B category, while everything else is covered under the O-1A category.

Who qualifies for an O-1A anyways? The category is for those individuals with an extraordinary ability in the Sciences, Education, Business or Athletics.  That’s right, everyone else that isn’t an “Artist”. As is painstakingly obvious, the O-1A doesn’t even come close to covering every type of non-artistic category. What about Lawyers? I know, the question is moot, because they are not extraordinary to begin with! But seriously, the O-1A category is an opportunity for highly skilled and talented individuals to come to the US on a 3 year work visa which, for example, does not have the restrictions of an H1B professional work visa.

In general, any Athlete, Scientist, Doctor, Researcher, Professor, and Business-person may qualify for this visa category.

A few more key differences between O-1A and O-1B are the standard of proof and the categories that you are required to meet.

For an O-1B “extraordinary ability” means you need to be someone of distinction in the field of arts, while under the O-1A you must have “reached a level of expertise indicating that you are one of the small percentage who has risen to the very top of your field”.

The evidentiary criteria for the O-1A offers a petitioner to prove 3 of 8 categories, while the O-1B only has 6 categories to choose from. Even though the criteria seem to be a more restrictive by having to be at the top of your field, you have more opportunities to prove it.

The O-1A Criteria:
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

If the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence in order to establish eligibility.

The best thing about the above list is that most people that have reached a certain level in their profession can fulfill the minimum requirements for the O-1A category. The category seems to be tailored for many Athletes, Professors, Doctors, Researcher, and Business-people.

Individuals such as Entrepreneurs, Inventors, and those individuals who don’t always fit neatly into an H1B visa category or even an investors Visa, may find the O-1A is right for them.

Also, Physicians with expiring J1 Visas who are not at the stage to obtain a J1 Waiver due to the 2 year residency requirement in their home country can opt for an O-1 Visa until the Waiver opportunity materializes.

To recap, O-1A might be an option for a non-artist that is still very talented in their given field. Maybe the O1 visa is right for you.

So you have your O1 visa approved and stamped in your passport. You hit the ground running in La La Land and boom, a big Studio wants to hire you for an episode of one the most watched shows in the US. You consider this your first big US break and if it goes well, your US career will also take off.

Then the legal department for the Studio wants to review a copy of your O1 Visa to make sure you are able to actually work for them. The copy of your O-1 Visa should include: A copy of the immigration forms, the sponsor letter, the agreement between you and your representative, an itinerary and the advisory opinion letters. But this NEW production is not listed on your Itinerary as one of the proposed projects you are coming to perform. What now?

Hopefully, you have an O-1B “Representative” Visa as an Actor. That means that your O-1B Agent/Manager is representing you before USCIS and the entertainment world for the purpose of you coming to the US to work with different productions.

Under the consent and representation of your O-1B Agent you may add additional engagements without filing an amended O-1B petition.

The section of the law that addresses this issue is 8 C.F.R. 214.2(o)(2)(iv)(D). Which states:

Amended petition. The petitioner shall file an amended petition on Form I–129, with fee, to reflect any material changes in the terms and conditions of employment or the beneficiary’s eligibility as specified in the original approved petition. In the case of a petition filed for an artist or entertainer, a petitioner may add additional performances or engagements during the validity period of the petition without filing an amended petition, provided the additional performances or engagements require an alien of O–1 caliber.

Since this is an O-1B Artist/entertainer situation, the O-1B Agent may add additional performances or engagements during the course of valid O-1B visa status without filing an amended petition. This will obviously save a tremendous amount of time, money and grief.

What does the Agent have to do to add an engagement or production? It can be as simple as providing the Studio with a letter stating that the Agent is adding this “big time” role as an additional engagement without having to file an amended O-1B petition.

So you have made it “big time” and are now on your way! Make sure to receive the proper advice about the type of visa to obtain and the proper classification, if not your “big time” will be “small time”.

As always do not hesitate to contact a qualified US Immigration Attorney with years of experience obtaining O1 Visas.

You’re an Artist and you have your O1 visa for the next three years. You made the big move and are really ready to take off with your career in the US. But, you just received an email from your sponsor saying that business is really going bad and the company is closing, what do you do?

A very conservative approach will be to go out and find a new sponsor as soon as possible. The next step will be to switch your visa over to that new sponsor and file a Change of Sponsor O1 petition. Once the petition is approved you have successfully switched your status over to the new sponsor, but will still have to have the visa re-issued at the US Consulate in your respective country.

That is the clear cut strategy if your O1 is tied to a particular production and you are “employed” by the company. If the company goes out of business then your O1 visa has been automatically revoked as you are no longer “employed” by that particular company. But, let’s take a closer look at another common situation. For example, what if you are an Actor and your visa is with an Agent or Manager and that company closes. Is your current O1 visa still valid? YES it is!

The section of the law that specifically discusses this issue in the Federal Regulations regarding Automatic Revocation of an approved O1 visa petition states: The approval of an unexpired petition is automatically revoked if the petitioner, or the named employer in a petition filed by an agent, goes out of business, files a written withdrawal of the petition, or notifies the Service that the beneficiary is no longer employed by the petitioner. 8 CFR §214.2(o)(8)(ii).

So what does this mean? In a very typical situation where an Artists’ O1 visa petition is filed by an “Agent” acting on behalf of multiple production companies (employers) the O1 visa is not automatically revoked even if the Agent closes his/her business. This is true because the Agent is not the employer, and as long as the current and future production work remains valid then the visa remains valid. However, if the named employers in the petition filed by an Agent go out of business then the O1 visa is possibly automatically revoked.

As always if you are going through a similar situation make sure to immediately discuss the matter with a qualified immigration attorney.

An O-2 visa is available to those individuals who are essential to the O-1 visa artist or athlete’s performance. The case should include proof of the current essentiality, critical skills, and experience of the O-2 beneficiary with the O-1 principal. Additionally, the case should also establish that the O-2 has substantial experience performing the critical skills and essential support services for the O-1 principal.

In the case of motion picture or television productions, the evidence should establish that a production has taken place outside of the US and will take place inside the US, and that the continuing participation of the O-2 beneficiary is essential to the successful completion of the production.

To avoid any delays or issues, an O-2 petition should be filed with the Principal O-1 Visa. Also, the petitioner may not file the Form I-129 more than one year before the O-1 will begin employment. The typical case will include Form I-129, Petition for Nonimmigrant Worker, a Statement of Essentiality for the O-2 beneficiary from the O-1 Principal, proof that the O-2 has worked with the O-1 in the past, the petitioner letter, agreement, and itinerary with support for the scheduled performances. Lastly, a Consultation Letter is also required for all O-2 beneficiaries.

If the O-2 petition is for a beneficiary involved with athletics or the arts, the consultation must be from the appropriate labor organization. If the O-2 petition is in support of an individual involved in the motion picture or television industry, the consultation must come from an appropriate labor organization and a management organization with expertise in the skill area involved. If the petitioner can demonstrate that an appropriate peer group, including a labor organization, does not exist, then USCIS may waive the consultation requirement and make a decision based on the evidence provided.

So who can serve as an O-2? It depends on who the artist or athletes needs to perform. It may be coaches, trainers, dancers, managers, or backup singers – the list is infinite.

As always, consult an experienced immigration attorney in the area to see if you qualify for this classification.

In an effort to bolster foreign investment, promote start-ups and create much needed jobs, jobs, jobs in the United States, USCIS has launched new initiatives directed at entrepreneurs. Primarily they have opened the EB-2 immigrant visa category to these individuals. Entrepreneurs may obtain an employment-based second preference (EB-2) immigrant visa if they satisfy the existing requirements, and also may qualify for a National Interest Waiver under the EB-2 immigrant visa category if they can demonstrate that their business endeavors will be in the interest of the United States.

Traditionally, the EB-2 visa classification includes foreign workers with advanced degrees and individuals of exceptional ability in the arts, sciences, or business.  Generally, an EB-2 visa petition requires a job offer and a Department of Labor certification.  These requirements can be waived under existing law if the petitioner demonstrates that approval of the EB-2 visa petition would be in the national interest of the United States, hence a National Interest Waiver (NIW).

Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them). An entrepreneur may qualify if he or she:

-          Demonstrate that he or she is either a member of the profession holding an advanced degree or an individual of exceptional ability.

-          Will be working in the sciences, arts, or business.

-          Has exceptional ability in the sciences, arts, or business.

-          Will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.

-          The proposed work will be national in scope.

How can an entrepreneur establish that he or she has exceptional ability in the sciences, arts, or business? They need to establish at least three of the following:

(A) An official academic record showing that the beneficiary has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability.

(B) Evidence in the form of letter(s) from current or former employer(s) showing that the beneficiary has at least ten years of full-time experience in the occupation for which he or she is being sought.

(C) A license to practice the profession or certification for a particular profession or occupation.

(D) Evidence that the beneficiary has commanded a salary, or other remuneration for services, which demonstrates exceptional ability.

(E) Evidence of membership in professional associations; or

(F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

With this new open arms approach to entrepreneurs it might be an opportunity for many. If you feel you qualify for a National Interest Waiver Green Card please do not hesitate to contact a qualified immigration attorney to review your case.

So you have had your O1 visa for about 2.5 years and now you think it’s time to start inquiring about extending it. Great, but is it easy? O1 extensions used to be a fairly easy process whereby the same petitioner would just ask USCIS to extend the visa for the O1 beneficiary for 1-3 years so the beneficiary may continue their employment in the US. You would provide a letter, an agreement between the petitioner and the artist, the immigration forms and a previously obtained advisory opinion letter. This would typically be enough for the extension and the extension would be approved.

But what’s different now? The Brave New World of O1 visas. USCIS is frequently treating O1 visa extensions as brand new filings regardless of previous O1 visa approvals for the beneficiary. USCIS will require the following:

1. Sponsor letter detailing that the sponsor still requires the work of the alien, or in the case of an Artist, still wishes to act as their representative or employer.

2. Contract between the petitioner and beneficiary detailing the terms of employment/representation.

3. Detailed Itinerary listing the beneficiary’s activities for the duration of the visa. Depending on the area of ability or field in general, this can range from very tentative to very specific information. For example, Actors will have to provide production schedules with specific production locations and addresses, taking into consideration that some information may change in the future without requiring the Petitioner to amend the petition.

4. If the Petitioner/Sponsor is not the Employer but is a representative allowing the beneficiary to work with different employers, such as an agent or manager, the Sponsor must provide deal memos/contracts that detail the specific work that will be performed throughout the duration of the visa.

5. If a Consultation letter already exists, but is more than 2 years old, USCIS may require the Petitioner to obtain an updated letter form the appropriate union and/or management organization.

6. Evidence that you still meet the minimum criteria for O1 visas. In the past you would get away with not providing evidence of your abilities for an extension. Now, we recommend that individuals treat the extension as if it’s their first filing and build upon their previous O1 visa with proof of their continued work and growth in the field.

7. Beware and don’t be shocked if USCIS requests additional evidence that the beneficiary has actually worked with or for the Petitioner in the last 3 years. This may be in the form of: Income Taxes / W2 forms /contracts / pay stubs / production credits etc…

The above is a non-exclusive list of what you might be required to provide for your O1 visa extension. Please note that depending on the type of case and the specific details of your particular case the requirements might change. Every case is different and as always you should consult an experienced immigration attorney in the area to prepare your next O1 visa extension.

What has 2011 taught us about the O1 Sponsor? It’s very very confusing. The information discussed here is primarily from a recent Q&A provided by USCIS after an O1 visa teleconference.

Many O1 visas are filed by traditional employers, where the beneficiary will be performing one specific job throughout the time of their visa with just one employer. But what about those times where it’s not a traditional employer/employee relationship, more specifically, when can a U.S. agent file as a petitioner for an O1 visa beneficiary?

The regulations allow agents to be petitioners in a few different scenarios:

(1)   A U.S. agent can file for traditionally self-employed workers (actors, performers, musicians etc…), or workers who use agents to arrange short-term employment with numerous employers.

(2)   A foreign employer who authorizes an agent to act on his/her behalf.

Who can be a U.S. Agent for O1 visa purposes? A US agent may be the actual employer of the beneficiary or the representative of both the employer and the beneficiary or a person or entity authorized by the employer(s) to act in place of the employer(s) as its agent. Any of the above provides a multitude of options and flexibility for US Agents, representatives and actual employers.

But here comes the fun part…The evidence required depends on whether the agent is filing as an agent performing the function of an employer; as a person or company in business as an agent and filing for multiple employers; or as an agent for a foreign employer.

If you are an agent acting as an employer you will have less evidentiary requirements than an actual agent/agency that is sponsoring the performer for the purposes of working in multiple productions.

But what is an agent acting as an employer vs. a regular US agent?

USCIS says that an Agent is acting as an employer if the terms and conditions of employment show a level of control over the beneficiary’s work being relinquished to the agent, and then the agent may establish that it is performing the function of an employer. This determination will be on a case by case basis and will be based on the contractual agreement, whether written or oral.

One of the biggest problems with the O1 visa is the terminology used in the legal statute. Many times when they refer to “employment” or “employer” they are referring to it in the typical context of work visas and traditional employment arrangements which are completely contrary to the non-traditional needs of artistic industries in the US.

The important stuff: what type of evidence do we need to provide?

(A)   Agent as Employer: (1) summary terms of oral agreement or contract (2) itinerary with a greater degree of flexibility with how specific in the information provided may be.

(B)  US Agent sponsoring a traditionally self-employed worker (ex. Actor): (1) a contract between the employer and the beneficiary. USCIS will accept either a written or an oral contract. The contract must demonstrate what was offered by the employer and what was accepted by the employee. If an oral contract was entered into, the document evidencing the oral contract does not have to be signed by both parties to establish that there is an oral agreement. However, it must document the terms of the employment offered and that the beneficiary has agreed to the offer.  (2) The regulations also the petition to be accompanied by a complete itinerary of the events or activities. The itinerary must specify the dates of each service or engagement, the names and addresses of the actual employers and the names and addresses of the establishments, venues, or locations where the services will be performed.

Lately, the itinerary and offers of future employment have been highly scrutinized by USCIS. Hence, any O1 visa applicant should provide sufficient information concerning future work with as much specific information as possible.  

In conclusion, the US Agent as O1 sponsor is a viable option for many O1 visa petitioners, but the proper care and preparation needs to be taken prior to filing any petition. As always, consult a qualified US immigration attorney prior to taking any action.

We had the pleasure of participating in a teleconference held by USCIS on March 24, 2011, specifically on the issue of “Agents as Petitioners” for O1 visas, which in and of itself will be a topic for future discussion, as there was a tremendous amount of light shed on the area. But, more pressing and immediate is one of the topics avidly discussed in the teleconference, Itinerary and Contract requirements for O1 visas.

Within the last few months USCIS has been issuing many Requests for Evidence (RFE) on O1 visa petitions for specific itineraries and contracts for events/productions which the O1 visa holder will be performing during the pendency of the O1 visa. Even though this has always been requirement, in the past USCIS has not requested clarification on itineraries and contracts as they currently are. Again, there is a ton of information to discuss here, but we will focus on what is now required.

For O1 petitions where an Agent if performing as a sponsor, but not an employer, for example a typical Agent/Artist relationship, what are the requirements?

Firstly, a contract between the actual employer (a production company for an artist) and the beneficiary (artist) is required to be submitted with an O1 petition filed by an Agent as sponsor. The contract between the “traditionally self-employed” artist and the employing company provides USCIS with evidence that an actual job if offered and that the beneficiary will be coming to the US to fulfill the terms of the agreement. 

USCIS will accept either a written or an oral contract. The contract must demonstrate what was offered by the actual employer and what was accepted by the beneficiary. If an oral contract was entered into, the document evidencing the oral contract does not have to be signed by both Parties, which is counterintuitive, but allowed, to establish that there is an oral agreement. However, it must document the terms of the employment offered and that the beneficiary has agreed to the offer. Such evidence may include but is not limited to:

• E-mails between the contractual parties

• A written summation of the terms of the agreement

• Any other evidence which demonstrates that an oral agreement was created

 What about the Itinerary in this situation? When the beneficiary uses a U.S. Agent to file the petition, the petition must be accompanied by a complete itinerary of the events or activities. The itinerary must specify:

(1)   The dates of each service or engagement

(2)   The names and addresses of the actual employers

(3)   The names and addresses of the establishments, venues, or locations where the services will be performed.

This means that traditionally self-employed professions, such as Actors & Musicians, will have to provide deal memos and contracts for future work to be issued their O1 visas.

Much, much more to come on these changing issues….

Recent Message from USCIS:

Have you or someone you know recently received an e-mail claiming you’ve won the Green Card lottery and asking you to send or wire money?

Don’t fall for it – the sender is trying to steal your money!

Fraudsters will frequently e-mail potential victims posing as State Department or other government officials with requests to wire or transfer money online as part of a “processing fee.” You should never transfer money to anyone who e-mails you claiming that you have won the Diversity Visa (DV) lottery or been selected for a Green Card.

The US Government will never ask you to send money via Western Union!!!

Beware of any Green Card Lottery Scams, or copycat scams which come out of this scheme.

And we continue from our previous post….

7.       Display of the your work at artistic exhibitions or showcases

This is one of those categories which USCIS frequently says does not apply to every type of field. USCIS is fairly adamant that this category only applies to Painters, Sculptors or similar artists. It’s arguable that an actor or director displays there work through a film or production because it is a performance, but this will not always be a winning argument. Also, the mere fact that the artist has had his or her work exhibited does not necessarily establish extraordinary ability. The artist must also demonstrate the exhibition or showcase is itself of distinction and that the exhibited work at such an exhibition or showcase was itself of such significance. So the bigger the showcase and the artist role in the exhibition the better.

 8.       Performance in a critical or leading role for organization with distinguished reputation

It’s not just about performing a critical or lead role; it’s about doing so for an organization/company with a distinguished reputation. It also needs to be obvious that the petitioner has performed more than just a supporting role: how important was the role, was it important for the entire production or organization or merely important to a department or part of a production? It’s imperative to provide very direct evidence from the organization which details and specifically refers to the role performed by the petitioner.

9.       High salary

Here the petitioner must show that they commanded a significantly high salary or remuneration for their services in relation to others in the field. USCIS tends to focus on how much “significantly” higher the salary is compared to others in the field. They are not just looking at the fact that you get paid a high salary they want to see independent objective evidence about how much more significant that is than other similarly situated individuals in the field. The specific evidence will differ on a field by field basis, as well as how available this information is and from which independent sources. A CEO will likely be the highest paid person in a company but how do they compare to other CEOs in the same field.

 10.   Commercial success in the performing arts

Basically this category focuses on the exact high volume of sales and box office receipts. Just because you have recorded and released an album or performed in a theatrical, motion picture or television production would not be enough in this category. With readily available information such as ticket and album sales it should be fairly straight forward showing direct evidence of your extraordinary ability with this category. This is one of those categories that you either have or you don’t. But don’t be afraid to get creative depending on your field this category might work for you.

That wraps up the 10 main criteria that are utilized to adjudicate Extraordinary Ability Petitions. But what about if you don’t fit all of the above or not even a few of the above, what can you do? You are in luck, there is the catch all category called “Other Comparable Evidence” and we will take a in-depth look at it in one of the postings that follow.