O-1, O-2 & P-1/P-2/P-3 Nonimmigrant Visas Liliana Kottwitz, Attorney
Introduction to the O-Visa Categories • O-1 Visas
– The O-1 nonimmigrant visa is available to foreign nationals with extraordinary ability in a specific field including sciences, education, business or athletics. – O-1A vs. O-1B
• O-1A – for individuals in Science, Education, Business, or Athletics » Sustained national or international acclaim
• O-1B: for individuals in the Arts , Motion Picture or TV Industry
• O-2 Visas
“Prominence” ,“distinction” in the arts or extraordinary achievement in the Motion Picture or T.V. Industry.
– Support personnel assisting an O-1 holder
• O-3 Visas
– Spouses and children, under 21 accompanying the O-1 visa holder
O-1 Visas General Information •
Extraordinary Ability – An individual of extraordinary ability in the sciences, arts, education, business or athletics – Sustained national or international acclaim Petitioner and Proposed US Position (Self-Employment is not permitted) – Employer or agent – A O-1 Petitioner is NOT required to demonstrate that the proposed position/work requires someone of O-1 Caliber Foreign Residence Requirement – Not applicable
O-1A Visa For Athletes– Proving Extraordinary Ability •
Receipt of a major internationally recognized award – i.e. World Cup, Wimbledon Trophy, FIFA Player of the Year, Olympic Medals OR Meeting at least 3 of the following – Recipient of nationally or internationally recognized awards – Membership in associations which require outstanding achievements by their members – Published materials about the beneficiary’s work in professional or major trade publications – Evidence that the beneficiary has judged of the work of others in the field – Original scientific, scholarly or business related contributions of major significance in field – Authorship by beneficiary of scholarly articles – Employment in a critical or essential capacity at organizations with a distinguished reputation – Evidence that the beneficiary has commanded or will command a high salary
O-1B Visas •
Foreign nationals with extraordinary ability in the arts, motion picture or TV industry
Standard for O-1Bs in the Arts Must prove “distinction”
Standard for O-1Bs in the Motion Picture or TV Industry – Extraordinary Achievement (higher than distinction) Person must be “outstanding or notable” “high level of achievement in motion picture or TV industry evidenced by a degree of skill and recognition substantially above the ordinary”
Proving Distinction in the Arts (O-1B) • Prominence: The beneficiary must be prominent in his or her field as demonstrated by : – being nominated for or the recipient of a significant international or national award, such as an Academy Award, Emmy, Grammy or Director’s Guild Award
OR – Can document at least 3 of the following 6 Criteria: • • • • •
Lead in a production having a distinguished reputation; Critical reviews in newspapers or trade journal; Lead for organization that has a distinguished reputation; Record of major commercial or critically acclaimed successes; Significant recognition from organizations, critics, government agencies or other recognized experts in the field; • Commands or has commanded a high salary.
O-1B Visas –Motion Picture or TV Industry • O-1B visas in the Motion Picture or TV Industry • Have a demonstrated record of extraordinary achievement, in the motion picture or TV productions (press, media, nominations or awards); • Achievements must be recognized in the field; • Seeks to enter the United States to continue working in the area of extraordinary ability.
Relationship Between the Petitioner and the Artist & Written Contract • Employer –Employee Relationship
– The duration of the petition will not be limited to the artist itinerary
• U.S. Agent for a Foreign Employer
– The petitioner will need to accept service of process on behalf of the foreign employer
• U.S. Agent for the Artist – The duration of the petition will be limited to the duration of the itinerary
• The Contract – Artists at times do not have fixed salaries – Receive a percentage based compensation
Consultation from Appropriate Organization • A Consultation describing the beneficiary’s distinction. • The O-2 support staff requires an independent consultation. • If in the motion picture or TV business, a consultation with the union must describe the applicant’s achievements in motion picture or TV industry.
Itinerary • Dates should cover Start/End date on I-129 • Can include live performances, rehearsals, music recordings, dates traveling around the US to different tour destinations. • Must include: – Explanation of the event’s nature – Name of the event/performance – Location (Name of the venue, city and state is sufficient)
O-2 –Support Personnel • • • • • • • •
Support staff must have critical skills and experience with the O-1 principal Must be an essential or integral part of the performance Only applicable to the athletics and artistic fields Must contain consultations from each union with appropriate expertise over activities of the O-2 beneficiaries Can be filed concurrently with O-1, but will not be approved until O-1 is approved May include multiple O-2 beneficiaries in 1 (one) petition, if assisting O-1 in same performance Validity period will match the validity period of the O-1 Foreign residence requirement –Applicable
O-3 â€“Eligible Dependents â€˘ Granted to the spouse and dependent children (under 21 years) â€˘ Dependents are not authorized to obtain work authorization in the United States
P-1 Visa Process P-1 Visas are available to Athletes and Group Entertainers
• There are 2 categories of P-1 visas: – P-1A -Athletes
• Available to internationally recognized athletes, coming to the U.S. to performs, individually or as part of a team, to compete at an internationally recognized event. Or • Available to athletes or coaches (not internationally recognized but meeting the requirements of the Compete Act)
– P-1B –Entertainer Groups • Recognized internationally as being outstanding for a sustained and substantial period of time.
P-1A Visa P-1A visas are available to a foreign athlete who meets one of the following criteria: • Is an internationally recognized athlete, who performs as an athlete, individually or as part of a group or team, at an internationally recognized level performance; • is a professional athlete; as defined in section 204(i)(2); • performs as an athlete, or as a coach, as part of a team or franchise that is located in the United States and as a member of a foreign league or association of 15 or more amateur sports teams; or • is a professional athlete or amateur athlete who performs, individually or a as a group as part of a theatrical ice-skating production.
P-1B- Entertainer Groups •
Member of an entertainer Group, recognized internationally as being outstanding for a sustained and substantial period of time – Requires substantial relationship with the group over a period of 1 year. – At least 75% of the Group members. Definition – “International Recognition”: Meaning a high level of achievement. The Group must be well known in more than one country. Proving International Recognition: – Awards – Evidence of the group’s participation at distinguished events, concerts, festivals, Music shows, etc. – Critical reviews, articles in magazines, newspapers. – Evidence of the Group’s commercial success. P1S: Support staff essential or integral part of the performance.
P–2 Visas • Foreign artists or entertainers, coming to the U.S., individually or as part of a group. • To perform under a reciprocal exchange program, between an organization in the U.S. and a foreign organization. Foreign Residence Requirement • The applicant must have a foreign residence, in order to show ties to home country. • P2S: Support staff that are essential or critical to the performance.
P–3 Visas • These visas are available for foreign nationals who
– seek to enter the United States to perform, individually or as group, – To perform in culturally unique events – Artistic expression, unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons”
– Artists or entertainers, individually or as a group, – Coming to the United States to develop, interpret, represent, coach, or teach a unique or traditional ethnic, folk, cultural, musical, theatrical, or artistic performance or presentation – Coming to the United States to participate in a culturally unique event. • P3S: Support staff that are essential or an integral part of the performance.
Liliana Kottwitz Attorney Foster LLP LKottwitz@FosterGlobal.com 832.426.0371