Monday, June 14, 2010

Demystifying Options for Student-Artists

For students working in the arts, whether as performers, musicians, visual artists or technical personnel, the progression of immigration options from your F-1 status can be riddled with complexities. Of course it is not possible to describe each option in detail; consider this a primer.

The O-1 Visa

The O-1 is a nonimmigrant visa category designated for individuals who have extraordinary ability in their field. As applied to artists however, USCIS has made specific designation on a lower standard, requiring only “distinction” in the field. AS a practical matter, showing “distinction” requires proof that the individual has achieved a level of skill and recognition, which can be judge on a national or international scale. Accordingly, a strong O-1 petition will include, but is not limited to the following evidence: performing in a leading or critical role in a production with a distinguished reputation in the field; recognition of achievements through reviews, references, press and other media attention; commercial success or recognition; receipt of awards for the work performed, and other similar documentary proofs.

Because the O-1 is a sponsored petition, the petitioner must be an employer, organization or agent. An individual may not petition for an O-1 independently. In the arts, unlike many other fields, the employer permutations present a distinct advantage. The O-1 candidate can create an agent relationship for sponsorship, enabling them to take on work from a wide variety of sources through this agent. Unlike the H-1B, the structure of the O-1 often suits the arts, namely in cases where a long-term or fixed employer is not feasible.

Initially, an O-1 may be granted for the length of the event or agent relationship, not to exceed three years (Please note: in practice, O-1 agent relationships are contracted to accord with the three year cap rather than on an event-by-event basis). The event may be a tour, performance, contract, or residency program, to name only a few examples. Some of the additional benefits of the O-1 include: (1) the ability to extend the visa in one year increments without a limit on the number of years in O-1 visa status; (2) there is no home residency requirement for the O-1; and (3) O-1 holders can seek permanent residence without jeopardizing their underlying O-1.

When the O-1 isn’t right, try the P.

There are three P sub-categories designated specifically to individuals in the arts.

P-1: National or International Entertainment Groups

P-2: Reciprocal Exchange Programs

P-2: Culturally Unique performance and teaching

As with the O-1 the petitioner must be an employer, organization or agent. The P visas are granted on an event or performance basis, not to exceed one year, but permit unlimited one-year extensions. Again, the definition of an “event” here is flexible and can encompass an entire season of performances. However, unlike the O, the P carries a foreign residence requirement subject to scrutiny on the grounds of fraud.

Taking the Next Step.

Individuals who have achieved a high level of success may self-petition for permanent residence in the Extraordinary Ability category. However, in this standard, there is no distinction in the standard carved out especially for artists. Strong petitions in this category show that the applicant is among the most elite and specialized in their particular field, and that they have received national or international acclaim for their work. While the evidentiary standard here is nearly identical to the O-1, petitions for permanent residency receive stronger scrutiny.

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