The O Non-immigrant Visa for Aliens of Extraordinary Ability: Recent Trends and New Information
The O Visa classification requires
that the beneficiary meet legal criteria for "extraordinary ability" in the
sciences, arts, education, business, athletics, or motion
pictures/television. However, these
criteria vary depending on the field of endeavor. For most qualifying fields, the requirements
echo stringent permanent residence language, including, for example, "evidence
of the alien's original scientific, scholarly, or business-related
contributions of major significance in the field."
Less difficult is the O-1 standard
for practitioners in the fine and performing arts. The statute sates outright
that they must be possessed only of "a
degree of skill and recognition substantially above that ordinarily encountered," rather than being "one of the small
percentage who have... risen to the very top of the field of endeavor." Further,
the criteria are different and somewhat easier to meet, especially since testimonial
letters are specifically mentioned as qualifying evidence.
However, one complication often
faced by artists seeking O-1 classification is that they require employment
flexibility. A musician beginning his or
her career may wishe to perform for several different orchestras as well as
teach for a university or music school; an artist must be able to mounts shows
in different venues. Now, an O-1 petition
may be filed only by a "U.S.
employer, a U.S.
agent, or a foreign employer through a U.S.
agent." Therefore, a traditional way to ensure the necessary flexibility has
been for the artist to self-incorporate in the U.S.,
and for the corporation to act as the U.S.
employer.
Recently, USCIS has issued a number
of Requests for Further Evidence and denials of arts O cases on the grounds
such corporations do not meet the legal requirements for an O petitioner. In the wake of these actions, the Immigration
Service has released a memo clarifying the definition of "agent" for purposes
of O-1 petitions. The memo clearly states that the agent filing the petition
need only be able to show it is "authorized to act as an agent for the other
employers for the purposes of filing the
petition." The agent, then, need not be an independent
representing a number of artists - nor, according to additional language in the
memo, must he or she be one of the employers.
Rather, the agent must be shown to be "duly authorized." This may be accomplished by, for example,
submitting an authorizing statement signed
by the artist's employers; or an itinerary signed by the agent and the
employers on the itinerary; or statements from individual employers defining their
arrangements with the agent. Notably, however, "compensation is not a
requirement to establish agency." That
is to say, the agent need not be a paid entity.
A case filed by an agent requires
more coordination than a case filed by a corporation owned by the beneficiary
due to the extra layer of organization required. Nonetheless, the recent memo from USCIS confirms
that an O-1 visa remains an excellent route to flexible work opportunities in
the U.S. for
foreign fine and performing artists.