The appropriate Nonimmigrant Visa category for foreign Artists who come to temporarily work in the U.S. is the O-1 visa, reserved for individuals of “extraordinary ability” or “extraordinary achievement”.
The O-1 has different standards for approval based on whether the individual will enter to work in the fields of motion picture/television, the arts, or business, athletics, science, and education.
An O-1 for someone in the arts must prove distinction, which is a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that normally encountered. What does this mean? Well, essentially the Artist must be prominent in his/her field of endeavor.
The O-1 standard for an individual in the arts is not international achievement. The Artist may merely document his/her achievements in his/her home country, another country, or internationally (if s/he can). This concept is of particular importance, especially for those artists that are recognized only at national level and not internationally.
So, what does an Artist have to show to be granted O-1 status?
Immigration has come up with a list of items that the Artist may provide to prove his/her case:
1. Proof of one (1) major internationally recognized award in the field;
or at least three areas of documentation including the following:
2. Evidence that the Artist 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, publication contracts, or endorsements; and/or
3. Evidence that the Artist has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the Artist in major newspapers, trade journals, magazines, or other publications; and/or
4. Evidence that the Artist has performed, or 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; and/or
5. Evidence that the Artist 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 picture or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications; and/or
6. Evidence the Artist has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field.
7. Evidence the Artist has commanded a high salary or will command a high salary or other substantial remuneration for services, as evidenced by contracts or other reliable evidence; and/or
8. If none of the above applies to the Artist’s occupation, comparable evidence in order to establish the Artist’s eligibility.
Reviewing the above list, the Artist will already have a general idea whether s/he may qualify for an O-1 or not. However, please take into consideration that while the above list appears to be catered to individuals in the front line of the performing arts, #8 allows anyone to form-fit the items to a particular profession. Further, this category allows to define the Artist’s field as narrowly as possible. Therefore, it will be part of the attorney’s job to define who the Artist should be compared to, educate Immigration
on the standards for that particular field/subgroup, and then document the Artist’s standing compared to others using the above list as closely as possible.
Bottom line is that even if the Artist believes s/he does not qualify for O-1 status under the above list, it is always good to consult an experienced immigration attorney to really understand which type of documentation should be provided to Immigration.
First rule for all artists: “Never underestimate yourself!!”
NOTE: this article is provided by Gianni Toniutti, Esq., Partner of Tosolini, Lamura, Rasile & Toniutti LLP. This article and any of its content are property of Tosolini, Lamura, Rasile & Toniutti LLP and cannot be reproduced, disclosed to third party, or otherwise used without the consent of Tosolini, Lamura, Rasile & Toniutti LLP. This article is offered only for general informational purposes and does not constitute legal advice. No attorney-client relationship is created by this article. No warranties are made with respect to this article. The information provided above may not apply to your specific situation; thus, please consult an attorney with specific information about your case.