ESE Law

GENERAL ELIGIBILITY CRITERIA

To qualify for an O-1 visa, the beneficiary must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of extraordinary ability.

WHO QUALIFIES - REGULATIONS AND CRITERIA:

The Regulations of the INA state in Section 101(a) (15) (O) (I) in pertinent part:

(O) an alien who -
(I) has extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim..., and whose achievements have been recognized in the field through extensive documentation, and seeks to enter the United States to continue work in the area of extraordinary ability;

The O-1 visa category is divided into three categories, each subject to differing standards. The most exacting standard applies to aliens in the sciences, education, business and athletics;

A much less rigorous standard applies to individual aliens in the arts; An intermediate standard applies to aliens of extraordinary achievement in the motion picture and television industries.

According to the CFR, for aliens of extraordinary ability in the arts, the USCIS regulations require "distinction." “Distinction" means a high level of achievement in the field of arts as evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person is described as prominent, leading, or well known in the field of arts. 8 CFR Section 214.2(o)(3)(ii).

O1A
Extraordinary ability in the fields of science, education, business or athletics means a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor.

O1B
Extraordinary ability in the field of arts means distinction. Distinction means a high level of achievement in the field of the 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.

EVIDENTIARY CRITERIA FOR O-1B
Evidence that the beneficiary has received, or been nominated for, significant national or international awards or prizes in the particular field, such as an Academy Award, Emmy, Grammy or Director's Guild Award, or evidence of at least (3) three of the following:

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
Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications
Performed and will perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials.
A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or 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
Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the beneficiary is engaged, with the testimonials clearly indicating the author's authority, expertise and knowledge of the beneficiary's achievements
A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence

If the above standards do not readily apply to the beneficiary’s occupation in the arts, the petitioner may submit comparable evidence in order to establish eligibility (this exception does not apply to the motion picture or television industry).

ANALYSIS OF THE CATEGORIES:

AWARDS

To satisfy this category you must have either won or been nominated for a major national or international award. The regulations mention Academy Awards, Emmys and Grammys. If you have won an award that is not at this level of a major national or international award then USCIS will most likely consider that your award is insufficient for this category. Immigration will most likely not consider grants, residencies, or fellowships as satisfying the awards category. The current trend is that immigration rarely gives credit for the award category. On the other hand, evidence of grants, residencies and other awards are still very important because they help to show the significance of the artist.

LEADING ROLE IN EVENTS

For this category you must prove that you have had a leading or starring role in events that are considered prestigious. You must also prove that you will be coming to the U.S. to have a lead or starring role in events that are considered prestigious.

An event is something that occurs at a specific time. For example think of a performance in a concert, an artistic exhibition, a runway show, a lecture or a workshop. Judging the work of others can also be considered an event. Events can be documented as prestigious with articles about the event that mention the artist’s name. Press releases, invitation cards, catalogs and online mentions sometimes, but not always, prove that the event is prestigious. Promotional material about the event such as advertisements or posters can possibly prove that the event is prestigious.

Most visual artists that are ready to apply for an O-1 have had multiple exhibitions, including solo and group shows. In the past, they could satisfy the events category with invitation cards and a press release about an exhibition. Now (and in recent years) USCIS also looks for clear evidence that the artist had an important role in the exhibition and that the exhibition was in some sense prestigious.

To prove that the artist will have a leading role once they are in the U.S. we often look for press about the venue of the confirmed future event. For example, an art gallery that has been mentioned in the New York Times would be prestigious. We also look for press about the clients that the artist will work for (if the applicant is an art director, for instance). The key to this idea is to document that you are coming to the U.S. to do something and that there is some sort of evidence that this is prestigious. This can be accomplished by showing the venue is prestigious, that the actual event is prestigious or that the clients you will work with are prestigious.

PRESS: NATIONAL OR INTERNATIONAL RECOGNITION

The regulations specifically mention major newspapers, trade journals and magazines as satisfying this category. Put simply, good evidence in this category will include articles about the artist in newspapers that have a national circulation, magazines that have a wide following or trade journals. Feature articles about the artist are most favored. The artist should be prepared to show circulation information or other evidence that the publication is considered important.

Online articles and articles in local newspapers and less well-known magazines may not satisfy the press category, but they can still add value to an application. They may, for instance, show that events reviewed are prestigious or otherwise add up to demonstrate the artist’s prestige.

Some artists, such as photographers and illustrators, will have their name credited with their work in a magazine. Note as well that the artist can satisfy this category with published material that they write themselves. For example, an art critic often writes articles that appear in magazines and newspapers.

CRITICAL OR LEADING ROLE FOR ORGANIZATIONS

This category has two parts. Applicants must prove that they have had a leading, starring or critical role with organizations that have a distinguished reputation. They must also prove that they will have this relationship with organizations in the US once they obtain their visa.

For the first part of this category, letters from former employers, clients or collaborators may often demonstrate past critical role. Artists such as designers, architects, illustrators and photographers can satisfy this requirement with testimonial letters followed by materials that demonstrate the relationship. For designers, those materials can be organized from portfolio evidence. For photographers this can include print advertisements. It should be remembered that portfolio materials or commercial print advertisements alone do not demonstrate the critical role. These must be accompanied by some sort of confirmation of the artist’s involvement with the project. Hence the letters that confirm the critical role are critical and essential to proving this category. Visual artists can often get a letter from art galleries in other countries that represent them.

This category is often confused with the events category described above. For the critical role category the artist must demonstrate a critical role with an organization. For the events category the artist must demonstrate a leading role in an event.

There may be some overlap but consider this example. A runway model can get a letter showing that he or she was a model on a particular runway show. The runway show is the event and the letter demonstrates the model’s leading role in that particular event. On the other hand, a letter from the fashion designer of the event can prove that the runway model had a critical role with that fashion designer based upon their work together. This letter can be potentially more expansive than the letter confirming the model’s role in the runway show. It can also discuss other activities with that designer (the “organization”) in which the model had a critical or leading role.

The critical role category is a very important category for designers, illustrators, architects, art directors and photographers. It is the appropriate place to show work experience with employers and clients (the “organizations”). Often the critical role is demonstrated with letters of recommendation accompanied by supporting materials.

For example an architect can get a letter from his or her former company. The letter describes the importance of the designer’s work with that organization. The portfolio of supporting materials may include 5 to 10 pages that show the designs in print or online press.

COMMERCIAL SUCCESS OR CRITICAL ACCLAIM

In general this category would document commercial success that is public information. This can include box office receipts, album or book chart success, or articles in trade publications demonstrating commercial success or critical success. Critical success might be differentiated from significant recognition described below since this category would use objective public information about the critical acclaim and the recognition in the Significant Recognition category would come from expert letters or other evidence that might not be public information.

SIGNIFICANCE

The traditional way to demonstrate significance is to obtain strong recommendation letters from experts in the field to show that the artist is prominent.

Additional evidence to demonstrate significance can be awards, residencies or grants. Evidence that an artist is in an important collection can also be evidence of their significance.

HIGH SALARY OR OTHER REMUNERATION

Artists can show that they are prominent by demonstrating that they sell their work at a high price compared to other artists, or that they are well compensated, or that their work is commercially successful. Letters from accountants or letters from the company supplying the compensation (for example a letter from a gallery confirming high prices for artwork and/or a summary of work sold).

Designers can show their tax return or get a letter from an accountant to demonstrate their high salary and then compare that to designers in their field to demonstrate that their salary is high.

The high compensation category also allows evidence that a designer or artist will earn a high salary once they obtain the O1 visa. If a petitioner is offering a high salary this may satisfy this category.

PEER ADVISORY OPINION LETTER OR UNION NO OBJECTION LETTER

According to USCIS regulations, all O-1 visa applicants must receive a no-objection letter from a union if there is a union of that profession. Unionized professions include professional musicians, who generally apply to the American Federation of Musicians for this type of letter. For professionals including fine artists, curators and architects, there is no union, and the applicant can receive a letter from an expert in the field with standing to offer an opinion. This is called a Peer Advisory Opinion Letter. Put simply a peer advisory opinion letter is a recommendation letter from a person based in the United States who has good credentials to offer an opinion about the artist and whose letter carefully describes the artist’s important reputation.

FURTHER INFORMATION TO DOCUMENT THAT A NEWSPAPER, MAGAZINE OR TRADE PUBLICATION IS MAJOR

If it has a significant national distribution (this is the circulation, or number of copies sold or distributed)
Is in the predominant language of the country where it was published
Is not local (an example of a local publication would be the newspaper for a very small town that is only sold and read in that small town).

Please obtain the following information about each publication in which the article was published:

Title of the publication
Date of the publication
Name of Author of the publication
Translation of into English if in a foreign language
Evidence of the circulation of the publication (online or in print)
This information can often be found on the website for the publication, or for the publisher. It is frequently located in a section for prospective advertisers, sometimes in a downloadable Media Kit. Do not use Wikipedia or other unverified sources or blogs. Sometimes if you google the name of the publication and the word “circulation” you will find the information. For online publications, look for evidence of how many people read or “hit” the publication’s website. Please provide an English translation if this information is in a different language.
General evidence that the publication is prestigious
This information might be found in the “About” section of the website for the publication or for the publisher. Look for information about the readers of the publication (are they experts in your field?). Were there famous editors? Does the publication have an important or historical reputation? Again, do not use Wikipedia or other unverified sources or blogs. Please provide an English translation if this information is in a different language.
If you cannot find evidence that the publication is prestigious, see if you can find evidence that the author who wrote the article about you or your work is a prominent expert. Please provide an English translation if this information is in a different language.

PETITIONERS

To apply for an O-1 visa a foreign national must have an employer in the U.S. or a U.S. agent as his or her petitioner. Foreign nationals are not allowed to self-petition for an O-1 visa. You, the foreign national, are considered the beneficiary of a petition filed by someone else – your employer or U.S. agent

EMPLOYER

An employer agrees to pay you directly for your services, and in many instances the employer will withhold certain taxes from your earnings. This is a traditional employment relationship and works very well with professionals who are traditionally employed by a company, firm or institution. Examples include architects and museum curators. There are also instances where a company is a petitioner and the beneficiary is an independent contractor (where taxes are not withheld and the artist files his or her own taxes at the end of the year). Employment can be full-time or part-time. The employer can confirm a series of assignments at a specific rate, or it can confirm a range of assignments and even a range of rates. USCIS has been shown to be extremely flexible with their acceptance of a variety of relationships. But a key to successful application is having these confirmed assignments stretch over the entire duration of the visa period.

US AGENT

A U.S. Agent represents you in occupations where you have more than one employer or are receiving confirmed assignments from more than one entity. U.S. Agents sometimes receive a fee or commission for representing the artist. Some professionals work with artist representatives. Commercial photographers, illustrators and musicians often have artist representatives. An artist representative can serve as a U.S. Agent—but not all U.S. Agents are artist representatives. Some U.S. Agents will solicit work for an artist (for example an artist representative) while other U.S. Agents are not looking for additional work for the artist but are merely confirming the assignments with multiple entities that are required by the O-1 petition. It should be noted as well that there are instances where an employer could additionally serve as a U.S. Agent, thereby allowing a direct employment relationship and also the ability to perform services for other entities.

Contract between artist and U.S. Agent: The beneficiary (artist) and petitioner (U.S. Agent) sign a written agreement detailing the terms and conditions of their U.S. Agent-artist relationship.

Contract between artist and employers confirming the assignments in the U.S.: The companies that will be confirming the events with the artist will sign an agreement that will be submitted with the visa application. This agreement describes the work to be performed by the artist, rate of pay, number of projects per year, and other terms and conditions of the assignment. This agreement will also acknowledge that the artist is represented by an U.S. agent, and that this agent will represent both the artist and employer for work performed by the artist in O-1 status in the United States.

AN OVERVIEW OF US AGENTS

A U.S. Agent may be 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.

AGENT FOR MULTIPLE EMPLOYERS

Please note that a petitioner who will be filing as an agent for multiple employers must establish that it is duly authorized to act as an agent for the other employers. Additionally, agents filing I-129 petitions for multiple employers must include with the petition:

Supporting documentation including a complete itinerary of the event or events which specifies 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
Contracts between the actual employers and the beneficiary;
An explanation of the terms and conditions of the employment with required documentation.

AGENT PERFORMING THE FUNCTION OF AN EMPLOYER

An I-129 filed by an agent performing the function of an employer must include:

The contractual agreement between the agent and the beneficiary which specifies the wage offered and the other terms and conditions of employment. This can be a summary of the terms of the oral agreement or a written contract.
A petition which requires the alien to work in more than one location must include an itinerary with the dates and locations of work. There are no exceptions to the itinerary requirement when the petition is filed by an agent performing the function of an employer. However, USCIS does give some flexibility to how detailed the itinerary must be and does take into account industry standards when determining whether the itinerary requirement has been met. As such, the itinerary should at a minimum indicate what type of work the beneficiary will be engaged, where, and when this work will take place.

Please note that USCIS relies on the contractual agreement that must be provided with the petition to determine whether the agent is functioning as the employer of the beneficiary. The contractual agreement should establish the type of working relationship between the agent and beneficiary and should clearly lay out how the beneficiary will be paid. In totality, if the terms and conditions of employment show a level of control over the beneficiary’s work being relinquished to the agent, then the agent may establish that it is performing the function of an employer. This determination will be on a case by case basis and will be based on the contractual agreement, whether written or oral.

The petition must be submitted with evidence regarding the wage offered. However, the regulations do not contain a prevailing wage requirement. Furthermore, no particular wage structure is required. A detailed description of the wage offered or fee structure and that the wage offered/ fee structure was agreed upon may satisfy this requirement.

AGENT FOR FOREIGN EMPLOYERS

Agents filing I-129 petitions for foreign employers must submit the minimum general documentary evidence as required for all O-1 petitions, which include:

Copies of any written contracts between the foreign employer and the beneficiary or a summary of the terms of the oral agreement under which the beneficiary 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
A written advisory opinion from the appropriate consulting entity or entities.

Artist Visa Mentor Resources

PUBLIC LECTURE SERIES ABOUT HOW TO QUALIFY FOR O1 VISA