O-1 and P-3 Visas: Options for Artists & Entertainers

July 24, 2021

Are you an exceptionally talented artist, performer, athlete, academic, or entertainer? Are you looking to continue your craft in the United States temporarily? If so, you might qualify for an O-1 or P-3 visa. What is an O-1 Visa? The O-1 nonimmigrant visa is a short-term work visa for those who possess extraordinary skills in the sciences, arts, education, business, athletics, or television industry. O visas are granted for a particular length of time, up to a maximum of three years, with unlimited extensions in one-year increments. A spouse and unmarried children under the age of twenty-one may accompany the O visa holder as long as they do not accept employment in the United States. The good news: there are no annual caps on the number of individuals receiving O visas. O-1 Visa Qualification Criteria A job offer from a U.S. employer is a basic requirement for the O visa. Alternatively, a U.S. agent may file an O-1 petition for a worker who is traditionally self-employed or uses agents to arrange short-term employment with multiple employers.  In either event, an O-1 applicant cannot self-petition. The applicant must also demonstrate extraordinary ability by sustained national or international acclaim, or a record of extraordinary achievement in the motion picture and television industry, and must be coming temporarily to the United States to continue work in the area of extraordinary ability. O-1 visas are given only on the basis of a person's individual qualifications. Being a member of a group or team will not, by itself, qualify someone for an O-1 visa. What is “Extraordinary Ability” as it Pertains to O-1 Visas? Extraordinary ability in the fields of science, education, business or athletics means a level of expertise indicating that the applicant is at the very top of the field. This can be demonstrated if the applicant has received a major internationally recognized award, such as an Olympic medal or a Pulitzer Prize, or has accomplished at least three specific criteria—see the full list of criteria here. Extraordinary ability in the field of arts means distinction. Distinction means a high level of achievement in the field of the arts. This is evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that you are prominent, renowned, leading, or well-known in the field of arts. The applicant will need to supply documents showing that he or she has been nominated for or have received significant national or international awards or prizes in the particular field, such as an Oscar, Emmy, Grammy, or Director's Guild Award. Alternatively, the employer filing the petition can submit at least three forms of documentation. See the full list of accepted documentation here.

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Third-Party Worksites

June 8, 2018

Introduction An H-1B work visa is appropriate if two primary conditions are met. First, an employer must be able to demonstrate its need for a qualified worker to fill a specialty occupation. Second, a valid employer-employee relationship must exist throughout the duration of the H-1B visa residency.  For a more detailed discussion of the first requirement please see our previous articles. The petitioner (sponsoring employer) carries the burden of proving that a valid employer-employee relationship will exist for the duration of the beneficiary’s (foreign national’s) residency. Usually, a valid employer-employee relationship will exist if the petitioner retains the right to control the daily tasks, the work production, and is able to hire, fire, and pay the beneficiary. Demonstrating that a valid employer-employee relationship exists in compliance with the H-1B standard has never been difficult when the beneficiary will work at the petitioner’s job site, i.e. office, factory, or store. However, when an H-1B beneficiary will be working at multiple job sites a petitioner must demonstrate that a valid employer-employee relationship will exist when the beneficiary is on an assignment at a third-party worksite. It is more difficult to demonstrate a valid employer-employee relationship exists at third-party worksite because usually, both employers maintain some degree of control over the beneficiary. For example, the petitioner may retain the right to pay, fire, and dictate work production, but the third-party worksite may retain the power to discipline and dictate daily tasks of the beneficiary. Typically, when the United States Citizenship and Immigration Services (USCIS) was skeptical that the employer-employee relationship prong had been satisfied it would request additional information from the petitioner. However, under the Trump administration, the USCIS has reviewed and altered the third-party worksites evidentiary requirements. It issued a new policy memorandum that mandated that petitioners submit itineraries and non-speculative evidence that an employer-employee relationship will exist throughout the duration of the beneficiary’s residency if the beneficiary will work at multiple worksites.

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