O-1 Requirements for Artists
The Immigration and Nationality Act provides a separate definition of extraordinary ability in the case of arts for O-1 purposes—specifically, it requires a level of “distinction.” The regulations define distinction as a level of achievement, skill, and recognition substantially above what is ordinarily encountered.
An artist includes any field of creative activity or endeavor such as fine arts, visual arts, culinary arts, and performing arts. To qualify, they do not have to be at the very top of their field, but they must be substantially above what is ordinarily encountered.
The regulations also specify that extraordinary ability is proven with evidence of nomination or receipt of a significant international or national award or prize, such as an Academy Award, an Emmy, a Grammy, or Director’s Guild Award.
Alternatively, they can provide evidence of at least three of the following:
- Performance of services as a lead or starring participant in productions or events with distinguished reputations
- Achievement of national or international recognition, evidenced by critical reviews or other published materials
- Performance in a lead, starring, or critical role for distinguished organizations or establishments
- A record of major commercial or critically acclaimed successes
- Significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in their field
- Notably high salary
Advisory Opinions & “No Objection” Letters
Prior to filing the O-1 visa petition with USCIS, the employer must obtain an advisory opinion from an appropriate consulting entity or a labor organization, or show that an appropriate peer group, labor organization or management organization does not exist. If the position is covered under a union contract, the employer may obtain a “no objection” letter signed by an official union representative of the local chapter.
The letter must state that the labor organization has reviewed pertinent information about the position and the foreign worker’s credentials and that the hiring of the foreign worker will not “adversely affect the wages or working conditions of U.S. workers and that, therefore, it has no objection to the hiring of the foreign worker”.
The standard for obtaining an O-1 visa is very high, but many artists, entertainers, athletes, and other extraordinary individuals must obtain their visas as soon as possible. The Fleischer Law Firm LLC recommends using the USCIS “premium processing” service so the petition will be approved in 15 days or less.