Immigration Law Associates
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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.

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