Artists

 The United States welcomes foreign nationals who possess extraordinary ability in their profession, outstanding artists, performers, and cultural entertainers. The O and P visas are specifically geared toward these individuals. The O-1 visa is for artists of extraordinary ability or performers that have a record of achievement in the movies or television and have been recognized for their work. The P-1B visa is for performers in an internationally recognized entertainment group. Artists or entertainers who are part of a culturally unique program may apply for the P-3 visa. 

O-1 Visas for Artists and Motion Picture/Television Stars

Foreign nationals who demonstrate distinction in the arts may be eligible for the O-1A visa. Actors and actresses who have a record of outstanding achievement in the motion picture and television industry may apply for the O-1B visa. 

For O-1A artists, “distinction” means a high level of achievement in the arts evidence by a degree of skill and recognition substantially above that ordinarily encountered. The objective is for the artist to show they are described as renowned, prominent, or leading in their artistic endeavor. The “arts” includes fine arts, visual arts, and performing arts, but also any other field of creative activity or endeavor. Distinguished chefs are able to utilize the O-1A visa for their work in the culinary arts. Puppeteering was described as an art form in a precedential BIA case. But the O-1A visa extends beyond principal creators and performers to include directors, set designers, lighting designers, sound designers, choreographers, choreologists, conductors, orchestrators, coaches, arrangers, musical supervisors, costume designers, makeup artists, flight masters, stage technicians, and animal trainers.

To qualify for an O-1A visa, the artist must show that they have been nominated for or received a significant national or international award, such as an Academy Award, Grammy, Director’s Guild Award, or perhaps a Guggenheim Art Award or the Praemium Imperiale. Otherwise, the artist may document at least three of the following:

· Evidence that the alien has 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; 

· Evidence that the alien has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications; 

· Evidence that the alien has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials; 

· Evidence that the alien has a record of major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications; 

· Evidence that the alien has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the alien is engaged. Such testimonials must be in a form which clearly indicates the author's authority, expertise, and knowledge of the alien's achievements; or 

· Evidence that the alien has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence.

Careful attention must be given to the exact language of each requirement to make sure it is met. For example, simply showing a high salary is insufficient without supporting evidence of other salaries in the field. Likewise, evidence of a lead or starring role in a performance must be accompanied by evidence of the distinguished performance or venue itself. This is how O-1 filings become voluminous, especially if large portions of documents must be translated to English (an added cost most individuals don’t consider beforehand). If the requirements do not readily fit an endeavor but an individual feels they are still extraordinary, they may submit comparable evidence. But in doing so, the individual must also explain why the individual requirements are not applicable to their field. 

To be eligible for the O-1B, one must be recognized as outstanding, notable or leading in the motion picture and/or television field. This individual must demonstrate extraordinary achievement evidenced by a degree of skill and recognition significantly above that ordinarily encountered. They may show the nomination or receipt of a major award, like an Emmy or Academy Award, or may demonstrate at least three of the requirements listed above for artists.

To apply for either the O-1A or O-1B, U.S. employer or agent must file an I-129 petition with USCIS to establish eligibility. In addition to showing the artist’s extraordinary ability, all petitions must include a detailed explanation of the work to be done, an itinerary of events, and an employment contract. One unique feature of all O and P visas is the consultation requirement, a written advisory opinion from an appropriate labor union. 

Once USCIS approves the petition, the artist or actor will apply for the O-1 visa at a U.S. consulate overseas. The visa can be granted for a maximum of three years and can be extended. However, the length of validity is usually determined by the particular event or need that precipitated the O-1 application. Spouses and minor children are eligible for the O-3 visa. They may study but are not eligible to work in the U.S.

Support personnel may be eligible for the O-2 visa if they can establish that their assistance is an integral or essential part of the O-1 visa holder’s work or performance. The evidence should establish their current essentiality, critical skills, and experience, as well as their experience in supporting the O-1 principal. In the case of a specific motion picture or television production, the evidence should establish that significant production has already taken place outside the U.S. and the continuing participation of the personnel is essential to the successful completion of the production.

The “P-1B” Visa for Members of Internationally Recognized Groups

The P-1B visa is available to foreign nationals coming to the U.S. to perform as a member of an entertainment group that has been recognized internationally as outstanding in the discipline for a sustained and substantial period of time, and often in more than one country. Unlike the P-1A and O-1 classifications, the focus of the P-1B is on the entertainment group, not the individual. For example, one unique requirement of the P-1B visa is that the group must retain at least 75% of its members for one year. In addition, the group must demonstrate at least three of the following: 

· Your group has 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 

· Your group has achieved international recognition and acclaim for outstanding achievement in its field as evidenced by reviews in major newspapers, trade journals, magazines or other published material 

· Your group has 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 

· Your group has 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 

· Your group has received significant recognition for achievements from critics, organizations, government agencies or other recognized experts in the field 

· Your group has 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).

The P-1B visa is often granted to singers, musicians, dancers, entertainers, and circus personnel. To acquire P-1B status, an I-129 petition must be filed with USCIS. The petition must include the requisite consultation and employment contract, as well as an itinerary of events, evidence of group performances for at least one year, and evidence of the group’s international recognition. Individuals of the group then apply for the P-1B visa at a U.S. consulate. The status is generally good for one year and can be extended if necessary. Essential support personnel may also apply for P-1B status if their services are integral to the performance. Spouses and minor children may accompany the principal visa holder on the P-4 visa.

The “P-2” Visa for Reciprocal Exchange Programs for Artists and Entertainers

P-2 status may be granted to artists and entertainers who, either individually or as part of a group, are performing in the U.S. pursuant to a reciprocal exchange program. Such a program must be between U.S. organizations and overseas organizations that promote and provide for the temporary exchange of artists and entertainers; it must also maintain similarity in the number, caliber, and employment of the artists and entertainers exchanged. A written advisory opinion from an appropriate labor organization is required for the P-2 designation, similar to the P-1 visa.

The American Federation of Musicians (AFM), and Actors’ Equity are the only P-2 exchange programs currently available. These visas are generally issued for 1 year but may be extended. P-2 spouses and minor children are eligible for the P-4 dependent visa.

The “P-3” Visa for Artists and Entertainers under a Culturally Unique Program

P-3 status may be granted to an artist or entertainer, individually or as part of a group, to perform, teach, or coach in a culturally unique program that will further the understanding or development of the art form. Arts includes fields of creative activity or endeavor such as, but not limited to, fine arts, visual arts, and performing arts. Culturally unique means a style of artistic expression, methodology, or medium which is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons. Examples include a unique or traditional ethnic, folk, cultural, musical, theatrical, or artistic performance or presentation. In Matter of Skirball Culture Center, USCIS determined that culturally unique programs are not limited to traditional art forms and may include a fusion or hybrid of more than one culture or region. 

Like all other petitions of a P visa, the P-3 requires an I-129 petition with a consultation, employment contract, itinerary and event explanation, as well as evidence of the culturally unique programs and events. Essential support personnel subject to same requirements and must be integral to the performance. P-3 status is good for one year and can be extended if the circumstances require. Spouses and minor children may be eligible for the P-4 visa. 

The “Q” Visa for Cultural Exchange Programs Certified by USCIS

Individuals cannot self-petition for a Q visa – a qualifying employer must petition on behalf of a foreign national. The employer must administer a cultural exchange program that provides U.S. employment opportunities which have public, cultural, and work components; foreign nationals must be at least eighteen years old with a demonstrated ability to communicate their culture to the American public.

To petition for an exchange worker in Q status, the employer must file a Form I-129 with USCIS with evidence that shows it is operating an established international cultural exchange program. The employer’s eligibility as a cultural exchange program and designation by USCIS is a prerequisite to the issuance of any Q visa or status to an individual. The public component dictates that program activities take place in the U.S.’ public sphere to reinforce the transmission of cultural ideas, such as a school, museum, or business. The cultural component of the program is critical and should facilitate the exchange of attitudes, customs, history heritage, philosophies, and traditions of the sending country or countries. The employment or training opportunity must serve as a vehicle to achieve the program’s cultural objectives. The employer will also need a designated representative to liaison with USCIS as needed and must demonstrate the ability to pay comparable wages to the Q visa recipient. 

The employer must give the date of birth, country of nationality, level of education, position title, and a brief job description for each international cultural exchange visitor included in the petition, as well as what consulate that will process their Q visa application. It must verify and certify that the prospective participants are qualified to perform the service or labor, or receive the type of training, described in the petition.

The Q visa is valid for the duration of the program (with a maximum of fifteen months), after which the individual is afforded 30 additional days to depart the United States. Unlike several variations for the J visa, the Q visa does not carry a home residency requirement. But the Q visa is not available for back-to-back programs – any beneficiary of a Q visa must remain outside the United States for one year before they can return in Q status for additional cultural exchange programs. The Q-1 visa does not have a dependent visa options for spouses and children as cultural exchange programs are primarily intended for young, unmarried adults.

The “H-1B” Visa for Skilled Professionals

Foreign nationals possessing a fine arts or similar degree (art history, museums studies, etc.) may be offered employment by a gallery, museum, or similar institution. The H-1B can be used for these types of positions. Although the H-1B is intended as a temporary work visa, most beneficiaries of this status start the employment-based green card process within the first four years of receiving the H-1B. 

To qualify for an H-1B status, the two critical requirements are that the offered position is a “specialty occupation” and the beneficiary is qualified for the position. Meeting both requirements is intimately linked to the beneficiary’s education. 

A specialty occupation is a position that requires the “theoretical and practical application of a body of highly specialized knowledge” and a bachelor’s degree or higher as a prerequisite to getting the position. These two requirements work together and companies can demonstrate their position’s eligibility by demonstrating complex job duties, hiring practices, and commonality within their industry. In each of these avenues, the relevant concepts from the required degrees should be highlighted. However, in explaining their position’s complexity and requirements the U.S. company must also show the beneficiary is qualified for the position, often by virtue of their education. 

Every H-1B petition is different, and each presents its own challenges. USCIS has started taking a narrower view of positions and beneficiaries that qualify for H-1B status, and this interpretation has affected both longtime visa holders and previously uncontested occupations. However, with probative, credible, comprehensive, and thoughtful evidence difficult H-1B petitions can still be won. At Knight Immigration, we specialize in taking on tough H-1B cases.

The H-1B status is valid for a maximum of 6 years; spouses and dependents may join the principal visa holder in H-4 status but may not work. However, both the 6-year limit and ban on spousal work authorization is lifted if the principal H-1B holder has started the PERM process for employment-based permanent residence. The lottery only has to be done once, and H-1B beneficiaries may transfer jobs and employers by filing a new H-1B petition with USCIS.