O Visa: Extraordinary Ability in the Entertainment Industry, Motion Pictures and Television, and the Arts, Sciences, Education, Business and Athletics

This section provides information on our immigration attorneys main focus, the O Visa, allowing Entertainment Industry professionals and others to work in the U.S.

Please find background O Visa information below, followed by a number of Frequently Asked Questions. If you wish to speak with one of our immigration attorneys about your specific situation, feel free to click here, Contact Us.

O-1A: Extraordinary ability

In petitioning for an O-1A visa, as a person with extraordinary ability in the arts, science, education, business or athletics, the regulations require that you evidence that you as a beneficiary have extraordinary ability in your specific field. Note that the definition of who qualifies under the Arts category is very broad and will be discussed further in an upcoming post. Similar to the methods used in the O-1B process for persons in film and television, extraordinary ability can be evidenced via a internationally recognized award, or by evidencing at least three of the following;

1. Receipt of nationally or internationally recognized awards,
2. Membership in organizations that require outstanding achievement,
3. Published materials about the applicant in professional or major trade journals,
4. Being a judge or the work of others,
5. Evidencing original scholarly work of significance in the field,
6. Authorship of scholarly work,
7. Evidence of previous work in an essential capacity at an organization with a distinguished reputation, and/or
8. Having commanded a high salary or commanding a high salary in the future in relation to others in the field.

Although these are the suggested evidentiary materials, other comparable evidence is also permitted where an occupation does not lend itself to these particular requirements.

In addition to evidencing ones ability in the field there are additional requirements that need to be satisfied such as advisory opinions from appropriate labor unions, evidence of upcoming work in the U.S., and issues relating to agents. Our attorneys are able to assist you with all of these related matters as well.

As with the O-1B, the initial authorized period of stay allowed in the U.S. is up to three years with subsequent extensions possible although the amount of time provided on such a visa depends largely on the upcoming projects, events and employment that the O beneficiary has upcoming.

O-1B: Motion picture or Television

The O-1B category is similar in many ways to the O-1A visa category requiring extraordinary ability in the arts, sciences and other industries, although the O-1B 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 O-1B 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 O-1B visa petition must evidence, through a variety of possible evidentiary forms that he/she has:

1. Performed and will perform services as a lead or starring participant in a production or event that has a distinguished reputation;
2. 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);
3. Performed or starred in a lead role for an organization that has a distinguished reputation;
4. A record of commercial or critically acclaimed success as evidenced via standing in the field, ratings, reviews, or through others forms of evidence;
5. Received recognition for achievements from organizations, critics, or other experts in the field via testimonials; and/or
6. 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 O-1B 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 that e to be evidenced for an O 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.

O-2: Support team or crew

For persons wishing to accompany and/or assist an O-1 artist or athlete in a specific event or events, an O-2 visa is suitable. In order to qualify for such a visa the accompanying person or persons need to be:

1. An integral part of the performance or activity,
2. Must have experience related to the activity that are not of a general nature, and
3. The person must have a foreign residence which they do not intend to abandon.

For support personel who are looking to join an O-1 beneficiary in television or film for example, a focus is placed on evidencing that the support crew have skills and expereince that local U.S. workers cannot provide. To do this prior working relationships can be considered bewteen crew and O-1 beneficiary among other considerations.

These are just a few basics relating to the various O visas available. If you have any further questions related to the O visa category, feel free to contact our attorneys.

FREQUENTLY ASKED QUESTIONS SECTION:

How related must my extraordinary ability be to the proffered employment position?

Pursuant to the plain language of 59 Fed. Reg. 41818, the position for which an O-1 beneficiary is petitioned need not be a position that requires somebody of extraordinary ability. Instead, as clarified by the Administrative Appeals Office (AAO), on July 29, 2008, the beneficiary of the O-1 petition must themselves have the requisite extraordinary ability in that specific occupation. Accordingly, the evidence of a person’s extraordinary ability must be specifically related to the proffered position. For example, the mere fact that a person is a highly ranked professional tennis player does not alone qualify the person to be a tennis coach with the requisite ability to receive an O-1 visa.

A recent AAO decision denied the visa application of a professional squash player in part due to the fact that the beneficiary was using evidence of what she believed was her extraordinary ability as a competitive squash professional to fill the role of a squash coach. The AAO held that a competitive athlete and a coach required different skills and that the petition did not provide evidence of the beneficiary’s extraordinary ability as a coach.

As provided in a similar case, Lee v. I.N.S., 237 F. Supp. 2d 914 (N.D. Ill. 2002), considering the petition of a baseball player:

“…Lee's extraordinary ability as a baseball player does not imply that he also has extraordinary ability in all positions or professions in the baseball industry such as a manager, umpire or coach.”

Accordingly, when looking to use your extraordinary ability to enter the U.S. it is clear that you must enter to continue working in your specific professional capacity. Ability evidenced in related areas are however useful. In several AAo decisions, the following is provided:

“U.S. Citizenship and Immigration Services (USCIS) will not assume that an alien with extraordinary ability as an athlete has the same level of expertise as a coach or instructor of his or her sport. However, given the nexus between athletic competition and coaching or sports instruction, in a case where an alien has clearly achieved national or international acclaim as an athlete and has sustained that acclaim in the field of coaching at a national or international level, an adjudicator may consider the totality of the evidence as establishing an overall pattern of sustained acclaim and extraordinary ability such that it can be concluded that coaching is within the beneficiary's area of expertise.”

As with the O-1B, the initial authorized period of stay allowed in the U.S. is up to three years with subsequent extensions possible.

Just How Restrictive is the O-1 Visa Category intended to be?

The Administrative Appeals Office (AAO) provides the following blurb in many decisions it publishes:

“The extraordinary ability provisions of this visa classification are intended to be highly restrictive. See 137 Cong. Rec. S18247 (daily ed.,Nov. 16, 1991). In order to establish eligibility for O-1 classification, the petitioner must establish that the beneficiary is "at the very top" of her field of endeavor.

The regulation at 8 C.F.R. tj 214.2(0)(3)(ii) defines, in pertinent part:
Extraordinary ability in the field of science, education, business, or athletics means a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor.”

What Constitutes a Valid “Event” for entry as an O-1 Athlete?

Must I have a Specific Employment Contract before Applying for the O-1?

A person with extraordinary ability cannot petition themselves for an O-1 visa. Further, unless the case involves a field that is traditionally self-employing, the person must have an employer petition for the visa. 8 C.F.R. §214.2(o)(2).

As detailed by the Administrative Appeals Unit in a March 2008 decision, 8 C.F.R. Section 214.2(o)(ii)(B) requires that “…the petitioner must submit copies of any written contracts for the beneficiary, summaries of any oral agreement under which the beneficiary will be employed, and an explanation of the nature of the beneficiary's intended events or activities, the beginning and end date of such events or activities, and a copy of any itinerary for such activities.”

What are the Standards for Extraordinary Ability between the Arts, Sciences, Business, Education, Athletics and Motion Picture/Television Production?

As provided below, the regulatory language does vary between these field. 8 C.F.R. 214.2(O)(3)(ii) provides the following definitions:

Extraordinary ability in the field of arts means distinction. Distinction means a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.

Extraordinary achievement with respect to motion picture and television productions, as commonly defined in the industry, means a very high level of accomplishment in the motion picture or television industry evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent that the person is recognized as outstanding, notable, or leading in the motion picture or television field.

Extraordinary ability in the field of science, education, business, or athletics means a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor.

What Professions Fall Under the Umbrella of “Arts” for an O-1 Visa?

8 C.F.R. 214.2(0)(3)(ii) defines the “Arts” asincluding:

“…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 O-1 petition be held to?

In 2008 the Administrative Appeals Office held that the specific job you are petitioned for decides under which O-1 level of scrutiny your petition will be considered. As discussed in a previous Q & A, 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 O-1 petition for a freelance editor. The AAO provided:

“All O-1 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 she has already been working in that area. Whatever the beneficiary may have done in the past, the petitioner is a video production company. The record shows that the petitioner hired the beneficiary to work as an editor on a documentary entitled Gom Tang. To the extent that the petitioner may employ the beneficiary as an 0-1 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.'”

Extraordinary Ability in Business Regulations

The applicable regulation defines, in pertinent part that to qualify for an O-1 visa, a person with extraordinary ability in the field of science, education, business, or athletics,means a person who has reached a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor. 8 C.F.R. § 2 14.2(0)(3)(ii).

If such a person has not won major international recognition through awards then at least three of the following forms of documentary evidence are required:

(1) Documentation of the alien's receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

(2) Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

(3) Published material in professional or major trade publications or major media about the alien, relating to the alien's work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation;

(4) Evidence of the alien's participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought;

(5) Evidence of the alien's original scientific, scholarly, or business-related contributions of major significance in the field;

(6) Evidence of the alien's authorship of scholarly articles in the field, in professional journals, or other major media;

(7) Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation;

(8) Evidence that the alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence. 8 C.F.R. §2 14.2(0)(3)(iii)

Former Athletes turned Athletic Coaches

Agents as Petitioners: When Can an Agent Act as Petitioner?

So who can act as a United States agent for an O Visa Petition?

8 C.F.R. § 214.2(0)(2)(iv)(E) provides that the following persons qualify as agents:

The actual employer of the beneficiary, the representative of both the employer and the beneficiary; or, a person or entity authorized by the employer to act for, or in place of, the employer as its agent.

So what conditions must the U.S. agent follow?

The appropriate regulatory language provides that:

(1) An agent performing the function of an employer must provide the contractual agreement between the agent and the beneficiary which specifies the wage offered and the other terms and conditions of employment of the beneficiary.

(2) A person or company in business as an agent may file the petition involving multiple employers as the representative of both the employers and the beneficiary, if the supporting documentation includes a complete itinerary of the event or events. 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. A contract between the employers and the beneficiary is required. The burden is on the agent to explain the terms and conditions of the employment and to provide any required documentation.

(3) A foreign employer who, through a United States agent, files a petition for an O nonimmigrant alien is responsible for complying with all of the employer sanctions provisions of section 274A of the act and 8 CFR Part 274a.

Models: What Visa Options Exist for Models?

Are you asking yourself one of these questions, “How can a model get a visa to work in the U.S.?” or “As a model can I get a visa to work in the U.S.?” If you are, you might find the follow information useful:

The options that exist for models who wish to enter the U.S., or remain in the U.S. to take part in projects or shoots, normally comes down to the H-1B or O-1 Visa options. Both visa types allow a model to be in the U.S. to work. Note that for both visa types, the model must exhibit upcoming events or projects that they have in the U.S. Let us consider the basic requirements of both the H-1B and O visa for models:

H-1B Visa for Models: Taking a look at the H-1B option in some more detail it is always important to keep in mind that as opposed to the O visa option which we will discuss below, the H-1B visa has a quota each year, so the timing of the filing of such a petition is critically important. The H-1B category for Models requires that the distinguished merit and ability of the model be evidenced. Prominence in the field of modeling can be shown through documentation and evidence of any two of the following:

1. National (can be models home country) or international recognition evidenced through critical reviews or articles;
2. Recognition by experts/critics in the field of modeling as having prominence and merit;
3. Having performed for employers, or having participated in projects that have distinguished reputations; or
4. Showing that the model has commands a high salary as compared to others in the industry.

To review your specific case and its merits and chances of approval under the H-1B category, please feel free to Contact us directly.

O Visa for Models: The O visa option for models is somewhat more complex then the H-1B process. One of the advantages of the O visa however is that it can be filed throughout the year as there are no visa quotas as there are with H-1B visas. The O visa for models actually involves the preparation of a petition under the O-1A visa category, whereby it must be shown that the model has extraordinary ability in business. There is am O visa category for arts, however a leading case on the subject, Matter of Ford Models, Inc., provides that modeling is more suitable under an extraordinary ability in Business approach.

In order to satisfy the O visa requirements, the model must evidence a list of upcoming projects or events, must have a petitioning company or agent (note that the term agent has a specific definition that should be discussed with an attorney or researched further), and must evidence his/her extraordinary ability. Extraordinary ability can be shown by receipt of a major internationally recognized award. For most models such an award cannot be shown however another option does exist. Extraordinary ability can also be shown by satisfying as many, at least three are required, of the following types of evidence:

1. Receipt of nationally or internationally recognized awards;
2. Membership in organizations that require outstanding achievement;
3. Published materials about the model;
4. Reviews of the models ability from industry persons;
5. That the model has been employed in an essential capacity at an organization with distinguished reputation;
6. That the model has commanded or will command a salary above that which others in the industry receive.

Note that other forms of evidence may also satisfy the O visa standard and that this information is merely background in nature.

To have you particular case evaluated and prepared by one of our immigration attorneys, feel free to Contact us.

The H-1B and the O Visa option both allow for an initial admission period of three years after which extensions may be applied for if the necessary requirements are satisfied. Furthermore there are options to adjust status to that of a permanent resident green card holder in certain cases. These issues should be discussed with an immigration attorney or researched further in great detail as there are various issues that could arise during such processing.

Our Los Angeles Branch office, with locations in Pasadena and Beverly Hills, focuses on serving those persons in the Entertainment and Arts industries that require visa processing. Let our attorneys assist you today so that you can focus on your career and upcoming projects. Feel free to Contact us directly.