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 Distinction Must 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 Distinction Must 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 Distinction Must 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 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 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?