Immigration Guide for Actors and Members of the Entertainment Industry

Definition of "Arts" for Immigration Purposes

For O-1 purposes, the definition of arts, and thus artists, is broad: any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts. Aliens engaged in the field of arts include not only the principal creators and performers but other essential persons such as, but not limited to, directors, set designers, lighting designers, sound designers, choreographers, choreologists, conductors, orchestrators, coaches, arrangers, musical supervisors, costume designers, makeup artists, fight masters, stage technicians, and animal trainers.

"Arts" is thus a term of art that encompasses a full range of people, not necessarily principal creators or performers, but "above the line" in that they exercise creative judgment and apply imagination to the enhancement or preservation of a creative act. Under this definition, artistic administrators, music teachers, vocal coaches, and many others who contribute to the creative process may qualify for O-1B status. Even a highly skilled craftsman, such as a stage technician who contributes to the creative process, may do so.

Aliens with "extraordinary" ability in the sciences, ARTS, education, business or ATHLETICS may apply for the O-1 temporary work visa. In regards to aliens with extraordinary ability in the ARTS, including aliens coming to the United States to work for a Motion Picture or Television production (Actors, Directors, Producers), the term "extraordinary ability" is defined as " a demonstrated record of distinguished achievement". However, in the case of persons in the sciences, education, business, and athletics, the term "extraordinary ability" is defined as "sustained national or international acclaim" (requiring extensive documentation). The position offered must require the services of an alien of extraordinary ability. the period of authorized stay in the United States is linked to the time required to complete the performance or event.

The U.S. employer must establish either that the position offered or services to be provide involve an event or production of a distinguished reputation or that the alien is to perform in a leading or otherwise critical role in an event or production for an organization or company that has a distinguished reputation or record of accomplishments.

To obtain O-1 status the prospective employer must file a petition with the regional U.S.A. Immigration Service center with jurisdiction over the place of employment. These petitions are normally processed within 3-4 weeks. upon petition approval, the alien will be issued the O-1 visa at a U.S. Consulate or Embassy. Aliens already in the United States with other valid non-immigrant status, may apply to have their existing visa status changed to that of O-1 without applying for the O-1 visa at a Consulate or Embassy abroad.

The O-2 visa category applies to the accompanying personnel of the principal O-1 visa holder. The accompanying personnel must be an integral part of the performance, and have critical skills and experience with the principal O-1 visa holder, that are not of a general nature, and which cannot be performed by U.S. workers.

The P-1 visa category was established for those entertainers who do not qualify under the "extraordinary ability" standard of the O-1 category.

This category is set aside for aliens who perform with or are an integral and essential part of a performance of an Entertainment Group that is of international acclaim or otherwise outstanding for a sustained and substantial period of time.

The Immigration Service has adopted an expanded definition of what comprises an Entertainment Group. Although the term Group implies only those performing aliens, the Immigration Service has ruled that in those cases where a solo artist traditionally performs on stage with the same group of back-up personnel, the entire act .may be considered an Entertainment Group for P-1 purposes.

The P-1 classification may be awarded only to the international group to perform as a unit based upon the international reputation of the group. The two major requirements that apply to Entertainment Groups are:

1. The group must have been internationally recognized as outstanding for substantial and sustained period of time.
2. At least 75% of the group members must had a substantial and sustained working relationship with the group for a minimum period of one year; and these group members must perform an integral and essential role in the group.

The 1991 amendments to the U.S. Immigration Act provided that:

1. The one year requirement does not apply to 25% of the group members.
2. The one year requirement can be waived due to illness or other unanticipated circumstances.
3. The one year requirement does no apply to Circus performers, and essential Circus personnel, and
4. The international recognition requirement may be waived where the Entertainment Group has substantial and sustained national recognition but due to special circumstances such as limited access to international news media, and geography, the group was unable to obtain international recognition.

"Internationally recognized" means: having a high level of achievement in a field evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that such achievement is renowned, leading, or well known in more than one country.

The definition is similar to that of O-1B extraordinary ability, but a bit more stringent. What is important is the reputation of the group, not the individual achievements of its members, nor the acclaim of a particular production.

To establish international recognition, a petitioner may rely either on documentation of a major, one-time achievement by the group, such as the nomination for or receipt of a significant international award or prize, or on at least three of the following:

• Has and will perform as leading/starring group in productions/events with distinguished reputations;
• International recognition/acclaim for outstanding achievements;
• Has and will perform as leading/starring group for organizations with distinguished reputations;
• Record of major commercial/critically acclaimed success;
• Significant recognition from organizations, critics, governments, other recognized experts;
• Commanded/will command high salary/other substantial remuneration relative to others similarly situated.

There is no "comparable evidence" provision as in the O-1 category but letters from experts meet at least one of the criteria and can be used to buttress efforts to document other criteria. International recognition means recognition in more than one country. Thus, recognition in the group's home country coupled with recognition in the U.S. will suffice. Moreover, USCIS may waive the requirement of international recognition in favor of national recognition in special circumstances, such as a showing that the group could not attain recognition in more than one country for want of access to the news media or geographic isolation.

The P-2 Visa category applies to artists and entertainers, including individuals as well as groups who will be performing in the United States as part of a Reciprocal Exchange Program between a U.S. organization, and a foreign based organization

The P-3 Visa category applies to both individual artists and entertainers, as well as to entertainment groups, who will perform under a Culturally Unique program. The artist or entertainer must be performing in cultural events that further and enhance the understanding or development of his/her art form. In addition, the culturally unique program must be primarily sponsored by educational, cultural, or governmental organizations which promote such international cultural activities.