US VISAS FOR PEOPLE IN THE MEDIA INDUSTRY

By Shah Peerally, Esq. and Ketki Buddhisagar, Esq. 

Generally, people associated with the media industry such as entertainers, reporters, artists, and models have been invited to the United States on B1 or P Visa. The fact is that such performers and entertainers may come to the United States on many different non immigrant and possibly on immigrant visas. We are a law firm  focusing on immigration law. 

In this article, we have tried to compile few of the possibilities that can be used to bring individuals in media industry to the United States

Non Immigrant visas

1. B1 Visas- It has been a very common practice to invite individuals associated with entertainment and media industry on B-1 multiple-entry Visa as this Visa is commonly used for foreign nationals visiting the US for business purposes. This Visa may be issued for up to 10 years but the visa holder will normally be admitted to stay in US for 6 months at a time. This visa is very suitable for individuals such as singers, artistes and models who often visit US as a part of troupe performing shows and concerts for a brief period which generally does not exceed a period of 6 months. 
2. H1B visas –Generally, the H-1B visa program is used by U.S.employers to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field. Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors. One of the sub-category, H-1B3 , is available for fashion models of prominence. Models of distinguished merit and ability are qualified for this category of visa. Famous and outstanding models may use this visa to enter and work in the United States for a maximum of 6 years. 
3. I visas- Bona fide representatives of the foreign press, radio, film or other foreign information media are eligible under this category of visas.  I visas allow a period of stay for up to one year. There are certain advantages of I-Visa. There is no need to get USCIS approval before applying at a consulate. Admission is granted on a "duration of status" basis and as long as the media representative continues working for the sponsoring employer, no extensions of stay in the US are needed. Also, the amount of documentation required to secure I visa status is much less than in other visa categories 
4. The J1 Visa:  The J1 exchange visitor program is designed to promote the interchange of persons, knowledge, and skills in the fields of education, arts, and sciences. This visa program is designed to promote the interchange of persons, knowledge, and skills in the fields of education, arts, and sciences. These visas are issued to individuals who take part in a wide range of exchange visitor programs sponsored by schools, businesses, and a variety of organizations and institutions. These programs are envisioned for business and industrial trainees, scholars, students, international visitors, teachers, research assistants, and those on cultural missions. In addition, there are several exchange visitor programs for young people, including summer employment programs, internship programs for university students and au-pair programs. The most important benefit is that the dependants may stay in the U.S. as long as you maintain the J-1 status and can also apply for the employment authorization and may work in the U.S.
5. O visa – The O visa is for individuals of extraordinary abilities. Many artists fall in this category. The O-1 classification is divided into O-1A and O-1B sub-categories. An O-1A visa is for a worker who has extraordinary ability in the sciences, education, business, athletics at national or international level, while an O-1B visa is for a worker who has extraordinary ability in the arts, motion picture, or television industry. The worker must have a US employer that will employ the worker in his/her area of extraordinary ability. The petitioning employer is required to prove i) the worker has "extraordinary ability", and ii) submit a "written consultation."

Extraordinary ability in an O-1A petition is proven by demonstrating "sustained national or international acclaim." Sustained national or international acclaim is a matter of meeting defining criteria set by US immigration law. In general, the documentation is to establish that the worker's expertise places them among the best in their field of endeavor. 

Extraordinary ability in an O-1B petition is proven by a demonstrated record of extraordinary achievement in motion picture and/or television productions. A record of extraordinary achievement is likewise a matter of meeting defining criteria set by US immigration law. In general, the documentation is to establish that the worker has obtained a high level of accomplishment which has gained significant recognition. 

Unless the worker will be employed in the field of arts, entertainment, or athletics, and the USCIS has determined that a petition merits expeditious handling, a "written consultation" is required. A consultation is a written advisory opinion from a "peer group" which includes persons of expertise in the field or qualified organizations, stating that the alien qualifies as an alien of extraordinary ability and whether such extraordinary abilities are required for the activities to be undertaken by the alien. For example, the American Guild of Variety Artists (AGVA) may provide an advisor opinion used in a petition for a stand-up comedian, or the US Professional Tennis Association (USPTA) might provide an advisor opinion used in a petition for a tennis pro. 

There is no set maximum period for O-1 status. It is determined by the length of time needed for the alien to perform his duties or activities with the petitioner employer. Usually, an initial stay is limited to no more than three years, provided the petition can establish that the O-1 alien will need this much time for the proposed employment. This period may be extended at one-year increments thereafter, upon evidence showing that the alien's continued presence would be required

1. The P Visa- The P visa classification is divided into P-1, P-2, and P-3 sub-categories. A P-1 is further sub-categorized into P-1A and P-1B visas. A P-1A visa is specifically for an athlete coming to U.S. to perform at a specific athletic competition as an athlete, individually or as part of a group or team, at an internationally recognized level of performance. A few examples of those who may be in the US in P-1A status include tennis players, hockey team players, and soccer team players. 

A P-1B visa is for an individual coming to the United States temporarily to perform as a member of an entertainment group that has been recognized internationally as outstanding in the discipline for a sustained and substantial period of time. A few examples of those who may come in the US on P-1B status include rock bands, jazz bands, circus groups and performers, and trainers

A P-2 visa is for foreigners coming to the US to perform as an artist or entertainer under a reciprocal exchange program between an organization in the US and an organization in another country.. This category is similar to P-1B above but requires that that there is an exchange between persons of comparable experience and talent

P-3 visa is for foreigners coming temporarily to perform, teach, or coach in the arts or entertainment fields in a culturally unique program. It is applicable for a foreign national visiting the US either individually or as a part of group for the purpose of developing, interpreting, representing, coaching, or teaching a unique or traditional ethnic, folk, cultural, musical, theatrical, or artistic performance or presentation. In addition, it is required that such individual or a group participates in a cultural event or events which will further the understanding or development of that particular art form.  Some examples of P-3 visa holders may include a singing group dealing with cultural music indigenous to their home country or an Indian dance professional coming to teach Indian classical dance forms in the US.

The P-category visas are a good route for individuals who may not be able to come to U.S. because they are unable to meet the criteria of ‘extraordinary ability’ of an O-1 visa.  A "written consultation" is generally required for all P class visas. 

1. The Q Visa- The Q nonimmigrant visa is for international cultural exchange programs designated by USCIS. The other exchange visitor visa, J-1, described above is for educational and cultural exchange programs designated by the Department of State, Bureau of Consular Affairs. You may be eligible for a Q-1 nonimmigrant visa if you are seeking to participate in an international cultural exchange program. The Q nonimmigrant exchange program is for the purpose of providing practical training and employment, and to share the history, culture, and traditions of your home country with the United States. The Q Visa is an employment oriented program but the integral part of your duties must have a cultural element. Generally a Q-Visa is issued for 15 months and an individual is required to spend at least 1 year outside US before he can apply for participation in Q cultural exchange program again.  
   

Immigrant Visas

1.  Regular Labor Certification process:  If an entertainer has a valid employment visa, he may become a permanent resident by obtaining a Green Card. Employer sponsoring the applicant’s Green Card Process needs to prove to Department of Labor (DOL) that they were unable to find a suitable candidate for the job position in the domestic market. The process requires the sponsoring employer to undergo a process where they advertise for your position, carry out interviews and screening procedures and complete other formalities related to recruiting. If an entertainer has an original talent or exclusive knowledge of music, dance, culture of a particular country, the employer may satisfy the ‘non-availability’ of suitable candidate requisite under this process.

2.  National Interest Waivers: A national interest waiver is for advanced degree/exceptional ability workers who are seeking an exemption from the labor certification process and job offer requirement. Entertainers, like musicians, dancers or classical singers and other entertainers who have a potential prospectively substantially benefit the national economy, cultural or educational interests, or welfare of the United States have this option available. Entertainers of high caliber who have substantially

There is not specific statutory definition of "national interest," however a petitioner should confirm many relevant societal benefits of tangible national interest. A successful NIW applicant must satisfy a three-pronged test to be granted a waiver of the labor certification requirement. The applicant needs to prove: i) The applicant must work in an area that has "substantial intrinsic merit"--another way of saying that a reasonable person would agree that the work is important, ii) the work has applications of national scope, and iii) the applicant's continued work in this area, by nature of his or her proven accomplishments and potential to make future contributions, justifies waiver of the labor certification requirement. In other words, granting the waiver of the labor certification outweighs the inherent value of preserving job opportunities for U.S. workers.

3.  EB1A Category: If you are an artist, musician, actor or other entertainer of national or international repute, recipient of reputed awards in your field of art, then EB1A category may be one of your options. An EB1A is an immigrant visa in the EB1 category that is reserved for foreign workers of extraordinary ability in the sciences, arts, education, business or athletics. There is only one criteria, to be established, "sustained national or international acclaim."  

The standard for EB1A is high, and reserved for those who have proven to be amongst to top few percent in their field. The easiest way to prove eligibility is to show that you possess a major international award of renowned repute. Most people do not possess such an award, and may establish eligibility by providing at least three out of a group of several acceptable pieces of evidence including: proof of lesser national or international prizes of excellence, published material of your excellence in major publications, evidence of commanding exceptionally high compensation, etc.  

You do not need a job offer, but you should demonstrate that you are seeking to enter the US to work and substantially benefit the US. Also, unlike other employment based categories, the quota for EB1 class petitions generally is never met, therefore, a visa or change of status to EB1 can be obtained as soon as the petition is approved. EB1 cases do not require any test of the US job market either. The process can be completed in a matter of months.