By: Attorney Hendrik Pretorius
This material is for informational purposes only and does not in any way constitute legal advice or create an attorney/client relationship. The information contained in this website cannot and is not meant to replace the advice of competent legal counsel licensed in your state.
If you are a foreign born artist seeking to enter the U.S. to participate in an upcoming event, performance or recording, your ability and achievements to date in your field of endeavor may be your ticket to entry. The two main visa options for persons in the arts, music, television and film are the O and P visas. In this article I will discuss the O-1 visa, with a P visa article to follow in the future. Note that the P visa is normally more applicable to musical groups while the O visa is most often used for individual artists.[private_pro]
There are in fact two types of O-1 visas. The first type, the O-1A visa is applicable to those persons who have “extraordinary ability” in the fields of art, science, education, business, or athletics. The second category is the O-1B visa, which specifically applies to those persons who have a record of extraordinary achievement in the motion picture or television industries.
Let’s take a look at the O-1A visa in more detail. So how does one prove that you have reached a demonstrated level of prominence and “extraordinary ability” in your field enough to qualify for an O-1A visa? Well, the regulations are structured in a manner that provides an applicant with two opportunities to qualify.
The first, an extremely limited opportunity, requires an applicant to have received recognition for his/her work via a major nationally or internationally recognized award such as a Grammy Award, an Academy Award or some equivalent.
The second option, a much more accessible opportunity to qualify for this visa, allows an applicant to satisfy at least three of a number of suggested criteria. Note that although the regulations state that only three need be proven, a well-prepared petition will touch on as many of these as possible.
In order to address several of the visa requirements under this second route, an applicant should gather as much evidence as possible, verifying that the artist has:
Completed work in a critical or essential capacity for organizations and establishments that have a distinguished reputation;
Completed work that has been critically reviewed;
Received media coverage;
Received recognition from other experts in the industry;
Participated 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;
Received a nationally or internationally recognized prize or award for excellence in the field of endeavor (note this does not have to rise to the level of a Grammy, American Music award, Oscar, etc.);
· 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;
A high salary or other remuneration for services as evidenced by contracts, sales, or other reliable evidence.
Note that not all of these forms of evidence need to be available. These are merely some examples of the types of evidence that can be used to bolster an O-1 visa petition. Accordingly, it is clear that one of the keys to a successful O-1 visa petition is to show that an artist’s degree of skill and recognition is above that level ordinarily encountered in the field.
It is worth noting that through my interactions with many artists I have found that there is an overwhelming majority of persons who do not think they would qualify for an O visa when in reality many artists often stand a fairly good chance at approval. Of course this consideration comes down to a case-by-case analysis, but my point is that artists should not be discouraged before they have even had an assessment of their case by an immigration attorney who often handles such O visa applications.
For a successful O visa application there are a number of additional requirements that also need to be addressed which are not discussed in this brief article. Among these are considerations of an artist’s itinerary as well as the acting immigration petitioner. Further concerns regarding advisory opinion letters are important as well as actual processing times and processing options. All of these issues should be thoroughly considered before applying for an O visa.
The O visa is generally granted to qualifying beneficiaries for the period of time evidenced in the Beneficiary’s itinerary as provided by the Beneficiary’s itinerary of upcoming events or employer, depending on the particular case. The maximum period of time that can be granted on each initial O-1 visa is three years, although extensions may be obtained thereafter.
Note that it is also possible for an O-1 visa holder to submit a green card application while a person is working in the U.S. on their O visa. This “dual intent” is an important feature of the O visa which is not present with all non-immigrant visas types. The green card process for artists is the subject of another article.
I hope that this article was informative and served its intended purpose of providing some basic background information relating to one of the immigration options available to foreign-born musicians seeking to enter the U.S. to participate in upcoming projects or events. [/private_pro]
Hendrik Pretorius is an immigration attorney working in San Francisco, California, with the Law Offices of Vaughan de Kirby, who has helped many renowned artists with U.S. visa processing matters. Please feel free to contact Hendrik directly at hp@dekirby.net, 415-221-3500 Ext. 20, or go online to get more information and download free visa guides at www.immigrationlawcenter.net.
