Experienced Entertainment Visa Lawyer in San Jose and Silicon Valley
At MJLAW, we represent individual artists, actors, musicians, athletes, and talent agents who are seeking for non-immigrant, temporary P or O visas to work or perform here in the United States.
Entertainment Visa Options for Actors, Artists and Athletes
O1A For Scientists, Researchers, Business people, Educators, and Athletes with Extraordinary Ability
The O1A visa is a non-immigrant entertainment visa designated for aliens of extraordinary ability in the sciences, arts, education, business or athletics.
At Muston & Jack, P.C., since 1985, our lawyers have helped thousands of individuals to successfully navigate the O1 visa process to obtain O1A and O-1 B nonimmigrant visas. Our experience with non-immigrant temporary visas and with all aspects of U.S. immigration law can make a difference for you. To have your qualifications for the O1 visa evaluated by an experienced lawyer, contact our law offices today.
The O1 visa is not for everyone. Generally, the O1 nonimmigrant visa is only available to individuals who possess extraordinary ability in certain fields such as business, athletics, sciences, or the arts. In addition, the visa may be available to those who have demonstrated extraordinary achievement or are nationally recognized in entertainment or other industries.
DETERMINING ELIGIBILITY FOR AN O1 VISA
The key factor to obtaining an O1 visa is showing the “extraordinary ability” in your field. Generally, you have to show that you are part of that small percentage on top of your field. For example, a professional athlete or a movie star.
Proving that you have extraordinary skills in other fields like business or education can be very difficult. In these cases, your attorney can help gather the relevant supporting documents and evidence to show that you are at the top of your field. This can include awards, press clippings, and anything else that supports your extraordinary status.
For whom is the O1A Visa appropriate?
SCIENTISTS, EDUCATORS, BUSINESSPERSONS, AND ATHLETES WHO WISH TO QUALIFY FOR THE VISA MUST SHOW THREE OF THE FOLLOWING:
- Receipt of nationally or internationally recognized prizes/awards for excellence in the field;
- Membership in associations in the field that require outstanding achievement of their members, as judged by recognized national or international experts;
- Published material in professional or major trade publications or major media about the alien;
- Participation on a panel or as a judge of the work of others in the same or an allied field of specialization;
- Original scientific, scholarly, or business-related contributions of major significance;
- Authorship of scholarly articles in professional journals or other major media;
- Current or previous employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation; or,
- Past or proffered high salary or other remuneration for services, evidenced by contracts or other reliable evidence.
O1B VISA FOR ARTISTS AND ENTERTAINERS (EXCEPT TV OR MOVIE STARS) WHO WISH TO QUALIFY FOR THE VISA MUST SHOW THREE OF THE FOLLOWING:
- Has performed/will perform services as a lead/starring participant in productions/events with distinguished reputations as shown by critical reviews, ads, publicity releases, publications, contracts, or endorsements;
- National/international recognition for achievement through critical reviews, other published materials by or about the beneficiary in major papers, trade journals/magazines, etc.;
- Has performed in a lead, starring or critical role for organizations and establishments that have a distinguished reputation evidenced by media articles, testimonials, etc.;
- Has record of major commercial or critically acclaimed success;
- Has achieved significant recognition from organizations, critics, government agencies, recognized experts;
- Has commanded or will command a high salary/other remuneration in relation to others in the field.
Spouses and children of the O1 visa holder may obtain an O3 visa to enter and remain in the US. The O3 visa holder may attend school but if he or she wishes to work, he or she must change his or her status to obtain a work visa.
APPLYING FOR AN O1 VISA
The petitioner for an O1 visa will need to file a Form I-129, Petition for Nonimmigrant Worker. Some documentation to include with your application includes:
- Consultation: This would consist of a written opinion by your peers that you actually have extraordinary ability in your field. Generally, the consultation can come from a labor union or management organization.
- Contract: This is the agreement between the sponsor and the applicant describing the services to be provided and duties performed. For example, a professional athlete will sign a contract to play basketball or baseball. Or a researcher will have an employment agreement with a university.
- Itinerary: An itinerary can help explain what you will be doing in the U.S. For example, it may describe your activities as well as provide an end date to your stay.
O1B Visa for Artists, Actors and Actresses, Filmmakers with Extraordinary Ability
The O1B visa is very helpful for artists, athletes, entertainers, high-end chefs, and business people lacking professional degrees. There is no prevailing wage requirement, and the O1B visa may be extended indefinitely. There is also no numerical limit to the number of O1B visas issued.
The O1B visa category is similar in many ways to the O1A visa category requiring extraordinary ability in the arts, sciences and other industries, although the O1B visa is intended for those persons with proven extraordinary achievement in Motion Picture or TV productions.
So how does one prove that you have reached a demonstrated level of prominence in your field enough to qualify for an O1B 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 an Academy award or an Emmy or its equivalent.
The other, much more accessible opportunity to qualify for this visa, requires an applicant to satisfy at least three of six suggested criteria. Note that although the regulations state that only three of these six need be shown, there are situations in which a well prepared petition will touch on more than just three of these elements where proper. So let’s briefly consider these six in turn:
THE BENEFICIARY OF AN O1B VISA PETITION MUST EVIDENCE, THROUGH A VARIETY OF POSSIBLE EVIDENTIARY FORMS THAT HE/SHE HAS:
- Performed and will perform services as a lead or starring participant in a production or event that has a distinguished reputation;
- Received national or international recognition for achievements (note that this does not have to rise to the level of an Academy award to be persuasive);
- Performed or starred in a lead role for an organization that has a distinguished reputation;
- A record of commercial or critically acclaimed success as evidenced via standing in the field, ratings, reviews, or through others forms of evidence;
- Received recognition for achievements from organizations, critics, or other experts in the field via testimonials; and/or
- Commanded or will command a high salary for services in relation to others in the field.
Accordingly, it is clear that one of the keys to a successful O1B visa petition is to show that your degree of skill and recognition is above that level ordinarily encountered in the field. The burden of proof to be evidenced for an O1B visa petition in motion picture and television productions is in between the lowest level of scrutiny placed upon persons in the arts (which is a broad category) and the highest scrutiny which is placed on persons in the sciences, business, and athletics.
WHAT PROFESSIONS FALL UNDER THE UMBRELLA OF “ARTS” FOR AN O1B VISA?
“…any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts. Aliens engaged in the field of arts include not only the principal creators and performers but other essential persons such as, but not limited to, 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.”
IF I WORK IN BUSINESS OR THE ARTS BUT MY PROFFERED EMPLOYMENT IS RELATED TO MOTION PICTURE PRODUCTIONS, WHICH STANDARD WILL MY O1B PETITION BE HELD TO?
In 2008 the Administrative Appeals Office held that the specific job you are petitioned for decides under which O1B level of scrutiny your petition will be considered. There is a difference in standards applied to petition for those in the Arts and those in professions in Motion Picture and Television productions. In this case, the AAO was considering an appeal of a denied O1B visa petition for a freelance editor. The AAO provided:
“All O1B non-immigrants, regardless of the exact field of endeavor, must seek entry into the United States to “continue work in the area of extraordinary ability” or “extraordinary achievement” pursuant to section 101 (a)(l5)(0)(i) of the Act and 8 C.F.R. 214.2(o)(l)(ii)(A). The beneficiary can only continue work in a given area if he or she has already been working in that area. Whatever the beneficiary may have done in the past, the petitioner is a video production company.. To the extent that the petitioner may employ the beneficiary as an O1B nonimmigrant, her work clearly will be in motion picture and television productions, corporate videos and commercials. Because the petitioner seeks to employ the beneficiary in motion picture and television productions, it was reasonable for the director to consider the petition in the context of “motion picture and television productions” rather than under the category of ‘arts.’”
P1 Visa for Athletes and Entertainers
The P1 visa for athletes and entertainers provides a great alternative to an O entertainment visa petition. P1 has been expanded to allow minor league and amateur athletes an opportunity to qualify for the visa under certain circumstances, and music bands, circus performers and other entertainers as well.
P1 VISA CLASSIFICATION AS AN ATHLETE IN AN INDIVIDUAL CAPACITY:
A P1 Visa classification may be granted to an alien who is an internationally recognized athlete based on his or her own reputation and achievements as an individual. The Alien must be coming to the United States to perform services which require an internationally recognized athlete.
VALIDITY PERIOD
An approved petition for an individual athlete classified under the P1 visa regulations, shall be valid for a period up to 5 years.
P1 VISA FOR ENTERTAINMENT GROUP OR ATHLETIC TEAM:
An entertainment group or athletic team consists of two or more persons who function as a unit. The athletic team or entertainment group as a unit must be internationally recognized as outstanding in its discipline and must be coming to perform services which require an internationally recognized entertainment group or athletic team. A person who is a member of an internationally recognized entertainment group or athletic team may be granted P1 visa classification based on that relationship, but they may not perform services separate and apart from the entertainment group or athletic team.
The entertainment group must have been established for a minimum of one year, and 75% of its members must have been performing entertainment services for the group for a minimum of 1 year, (Subject to the special regulatory provision which provides a limited exception for entertainment groups where the Director of USCIS may waive the special one year relationship requirements where due to illness or other exigent circumstances, one or more members had to be replaced, 8 CFR §214.2(p)(4)(iii)(C)(3)).
VALIDITY PERIODS
An approved petition for an athletic team classified under the P1 visa regulations shall be valid for the period of time determined by the Director of USCIS to complete the competition or event for which the alien team is being admitted, not to exceed 1 year.
An approved petition for an Entertainment group under the P1 visa regulations shall also be valid for a period of time determined by the Director of USCIS to be necessary to complete the performance or event for which the group is being admitted, but not to exceed one year.
P1 VISA REQUIREMENTS FOR INDIVIDUAL ATHLETES AND TEAMS
Evidentiary Requirements for an internationally recognized athlete or athletic team:
A petition for an athletic team must be accompanied by evidence that the team as a unit has achieved international recognition in the sport. Each member of the team is accorded P1 visa classification based on the international reputation of the team. A petition for an athlete who will compete individually or as a member of a U.S. team must be accompanied by evidence that the athlete has achieved international recognition in the sport based on his or her reputation. A petition for a P1 visa athlete or athletic team shall include:
1. A tendered contract with a major United States sports league or team, or a tendered contract in an individual sport commensurate with international recognition in that sport, if such contracts are normally executed in the sport, and
2. Documentation of at least two of the following:
- Evidence of having participated to a significant extent in a prior season with a major United States sports league;
- Evidence of having participated in international competition with a national team;
- Evidence of having participated to a significant extent in a prior season for a U.S college or university in intercollegiate competition;
- A written statement from an official of a major U.S. sports league or an official of a governing body of the sport which details how the alien or team is internationally recognized;
- A written statement from a member of the sports media or a recognized expert in the sport which details how the alien or team is internationally recognized;
- Evidence that the individual or team is ranked if the sport has international rankings; or
- Evidence that the alien or team has a received a significant honor or award in the sport
P1 VISA SELF PETITION NOT PERMITTED:
Individual entertainment groups may not file a P1 visa petition on behalf of itself as the Petitioner, but must be petitioned by a third party sponsor or employer. P1 visa petitions may only be filed by a U.S. employer, a U.S sponsoring organization, a U.S. agent, or a foreign employer through a U.S. agent.
SPONSORS, AGENTS AND EMPLOYERS:
Due to the nature of the entertainment business and the very seldom occasion for an entertainment group to have just one employer it reports to, USCIS appears to have acknowledged this reality via its regulatory authorities by authorizing entertainment groups to be petitioned by other potential sponsors besides an employer. For the general rule otherwise states that an entertainment group must have a P Visa petition filed by each and every separate employer from whom it receives compensation in exchange for its performances. Given the impracticality of this requirement in most cases, USCIS has afforded entertainment groups the right to be petitioned by U.S. sponsoring organizations, a U.S. agent, or a foreign employer through a U.S. agent.
In November of 2009, a memorandum was published by the United States Citizenship and Immigration Services (USCIS) in an attempt at clarifying the standards for adjudicating O and P petitions filed by a Petitioner acting as a U.S Agent for a Beneficiary or Beneficiaries who will be working for more than one employer within the same time period of the visa’s validity period.
While the November memorandum specifically states that any U.S. agent who petitions for foreign based entertainment groups or band must be “in business as an agent”, the definition provided as to what constitutes “in business does not entail a requirement that the U.S. based agent show that it has in the past been in the business of representing entertainers as that term of agent is typically understood in the entertainment industry.
The memorandum states instead that the Agent only need be granted the authority by the separate employers to act as the Agent for the entertainment group for the only purpose of filing the instant P status or visa petition. Given this vague nature of the regulation and the further uncertain interpretation provided in memoranda, it is advisable that one seek the consultation of one of our experienced attorneys to guide you in deciding this and other matters pertaining to the P status and visa petitions.
P2 and P3 Visa for Musician, Artists, Music Bands, Entertainers and Their Crew
The P2 and P3 visa for entertainment groups includes groups as small as two persons. One of the applicable requirements for entertainment groups is that at least 75% of the petitioned group must have been together for more than one year prior to the time of filing of the petition. The P2 or P3 entertainment visa can be used by a wide array of entertainment groups including musicians, dancers, singers and their supporting staff.
P2 VISA FOR ARTISTS/ENTERTAINERS UNDER RECIPROCAL EXCHANGE PROGRAM
The P2 Visa is issued to artists or entertainers, individually or as a group, as well as their essential support personnel, who will be performing under a reciprocal exchange program which is between an organization or organizations in the United States, which may include a management organization, and an organization or organizations in one or more foreign states and which provides for the temporary exchange of artists and entertainers, or groups of artists and entertainers.
For other commercial artists and entertainment groups, the P1 Visa could be more suitable.
The exchange of artists or entertainers shall be similar in terms of caliber of artists, entertainers, terms and conditions of employment, such as length of employment, and number of artists or entertainers involved in the exchange. However, this requirement does not preclude the exchange of an individual for group exchange.
VALIDITY PERIOD
An approved petition for an Entertainment group under the P2 regulations shall be valid for a period of time determined by the Director of USCIS to be necessary to complete the performance or event for which the group is being admitted, but not to exceed one year.
THE GENERAL EVIDENTIARY REQUIREMENTS FOR ALL P VISAS INCLUDE THE FOLLOWING:
- The evidence specified in the specific sections of the three P visa classifications as indicated below;
- Copies of any written contracts between the Petitioner and the Alien Beneficiary or, if there is no written contract, a summary of the terms of the oral agreement under which the Alien(s) will be employed;
- An explanation of the nature of the events or activities, the beginning and ending dates for the events or activities, and a copy of any itinerary for the events or activities; and
- A written consultation from a labor organization
P2 VISA EVIDENTIARY REQUIREMENTS
A petition for P2 classification shall be accompanied by the following:
- A copy of the formal reciprocal exchange agreement between the U.S. organization(s) which sponsor the aliens and an organization (s) in a foreign country.
- A statement from the sponsoring organization describing the reciprocal exchange of U.S. artists or entertainers as it relates to the specific petition for which P-2 classification is being sought;
- Evidence that an appropriate labor organization in the U.S. was involved in negotiating, or has concurred with, the reciprocal exchange of U.S. and foreign artists or entertainers; and
- Evidence that the alien for whom P-2 classification is being sought and the U.S. artists or entertainers subject to the reciprocal exchange agreement are artists or entertainers with comparable skills and that the terms and conditions of employment are similar.
P2 ESSENTIAL SUPPORT PERSONNEL
An essential support alien may be provided P3 status based on a support relationship with a P2 entertainer or artist. The evidentiary criteria include the following:
- A consultation from a labor organization with expertise in the area of the alien’s skill.
- A statement describing the alien’s prior essentiality, critical skills and experience with the principal alien(s)
- A copy of the written contract or a summary of the terms of the oral agreement between the alien(s) and the employer.
P3 VISA FOR ARTIST OR ENTERTAINER UNDER A CULTURALLY UNIQUE PROGRAM
P3 Classification may be accorded to artists or entertainers, individually or as a group coming to the United States for the purpose of developing, interpreting, representing, coaching or teaching a unique or traditional ethnic, folk, cultural, musical, theatrical, or artistic performance presentation.
The artist or entertainer must furthermore be coming to the United States to participate in a cultural event or events which will further the understanding or development of his or her art form. The program may be of commercial or noncommercial nature.
