Visa Options for Artists, Musicians, and Performers

Curran & Berger LLP

Immigration Law Office

Overview

Nonimmigrant Visas (Temporary) Immigrant Visas (Permanent) Special Considerations

Nonimmigrant Category: O-1

Extraordinary ability 3 years to start, with

one-year extensions No minimum wage requirement

Extraordinary standard for artists

“Extraordinary” = “distinction” Distinction = “a high level of

achievement… evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person is described as prominent, renowned, leading or well-known in the field of arts.”

Evidence of DistinctionMust meet 3

Lead/starring participant in production/events with distinguished reputation as shown by critical reviews, ads, publicity releases, publications, contracts or endorsements

National or international recognition for achievements, as shown by critical reviews or other published materials by or about you in major newspapers, trade journals, magazines, or other publications

Evidence of DistinctionMust meet 3

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

Significant recognition from organizations, critics, government agencies, recognized experts

Evidence of DistinctionMust meet 3

A high salary or other substantial remuneration for services in relation to others in the field

Other comparable evidence that establishes skill and recognition in the field

Petitioner

An O-1 artist may not petition for him/herself

Company or non-profit organization Agent – this is harder now There must be a contract or written terms

Length of Visa For “event” Event could be a residency, tour or

contract Max. of three years for the first visa No limit on one-year extensions Need itinerary or plan

Consultation

Need consultation from a labor union, if there is one

Examples: Actor’s Equity Assoc., American Federation of Musicians, etc.

Long term plans (intent)

No foreign residence requirement for O visa recipients

You may seek permanent residence from O status

O-1 Examples

Jazz musician who has played with highly regarded groups around the world and been noted in reviews in NY Times

Portuguese tile painter who is frequently commissioned to create pieces for government buildings, churches, private homes

Nonimmigrant Category: P

P-1 for internationally known entertainment groups (not solo artists)

P-2 for performing artists participating in reciprocal exchange program

P-3 for culturally unique artists

P-1 Entertainment Groups Based on group’s reputation, not

individual achievement Requires evidence that group has been

established/performing for at least 1 year Criteria for “international recognition” is

similar to O-1 Exceptions: 75% rule, national recognition Group can be US-based

P-2 Reciprocal Exchange

Few programs American Federation of Musicians has

program for Canadians Actors Equity has British program

P-3 “Culturally Unique” Broad definition: style must be unique to a

particular country, region, society, ethnicity, or other group

Broad use: teach, perform or otherwise represent their specialty in the U.S.

P-3 Examples

Musical group from Senegal in U.S. to perform and to record music for an educational production

Irish actor performing a one-man show in which a portion of the dialogue is in Gaelic

Nigerian dancer teaching at a performing arts high school

Petitioner

Artist may not petition for him/herself Business or non-profit organization Agent Contract or written terms

Duration of P visa

Length of event “Event” is flexible, may be an entire

season of performances No limit on one-year extensions

Consultation

consultation from a labor union, if there is one

“No objection” letter, opinion of the applicant’s work or confirmation of P-2 program

Long term plans (intent)

Foreign residence requirement for P visa recipients

Principals may seek permanent residence, but support personnel may not

High fraud consular posts are more likely to deny P visa applications

Other Nonimmigrant Visas H-1B for Specialized Workers

Position must require at least a bachelor’s degree in a specialized field

Minimum wage requirements 6 year limit

H-3 for Trainees/Apprentices Strict criteria Extensive documentation required

Other Nonimmigrant Visas

AILF J-1 Training Program http://www.ailf.org/exchange/

E-2 Treaty Investors E-3 for Australian Citizens

Similar to H-1B

Very limited use of B-1 visa

Immigrant Category: Extraordinary Ability

Similar to O-1 criteria, but higher standard Must meet standard for extraordinary

ability, rather than distinction Examples: jazz musician and Portuguese

painter both obtained permanent residence in this category

Immigrant Category:Labor Certification

Option if you have an employer (rather than an agent) and full time job

Requires a test of the labor market to show there are no minimally qualified U.S. workers for the position

Different standard for university teachers/instructors

Other Paths to Green Card

Family--based petition Political Asylum Diversity Lottery

http://travel.state.gov/ Spouse

Keep in Mind

Plan ahead for both nonimmigrant and immigrant visa options

Beware of letting your status lapse or unauthorized work

Teaching or other employment may be the fastest way to permanent residence

Any Questions?