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7.pptxNonimmigrant visas for Extraordinary Ability, Religious Workers, & Ancillary Activities
CHAPTER 4 (PAGES 135-175)
Recap for Nonimmigrant Visa Chapters
Chapter 2 covered nonimmigrant visas that do NOT generally confer employment authorization.
Chapter 3 discussed the nonimmigrant visas for employment purposes that are most commonly used by corporate entities in the U.S. to hire foreign workers.
Chapter 4 will explore the remaining visa classifications that automatically granted employment authorization.
O Visa Classifications: allows temporary entry for specific objective
O-1A Visas
Individuals with Extraordinary Ability in the Sciences, Education, Business, or Athletics
O-1B visas
Individuals with an extraordinary ability in the arts or extraordinary achievement in the motion picture or television history
Terminology regarding O Visas
Authorized Entity: an individual person, agent, or corporate organization that is permitted to file a nonimmigrant visa petition on behalf of a foreign national
Peer Group: a group or organization comprised of practitioners of the foreign national’s occupation.
Agents: the actual employers of the beneficiary who will perform at an event, the representatives of both the employer and the beneficiary of the petition, or a person or entity authorized by an employer
Event: an activity such as, but not limited to, a scientific project, conference, convention, lecture series, tour, exhibit, business project, or engagement
Shared Requirements for O-1A & O-1B Visas
Mechanics are the same: Petitions are filed with USCIS and beneficiary receives a visa overseas.
Both classifications require an advisory opinion from a recognized peer group or person with expertise in beneficiary’s area of expertise
Agents and direct employers are allowed to serve as petitioner for the beneficiary
Having an agent is helpful because then only one person can petition for O-visa beneficiary, instead of multiple petitions filed by multiple employers
Evidence for O-Visas
Approval of a petition for O-1 classification is based on successful demonstration of a beneficiary’s extraordinary ability through evidence of sustained national or international acclaim within his or her field of endeavor.
Evidence will vary based upon what type / field of O visa is being sought after
Proof showing that work & services are in area of extraordinary ability
Extraordinary Ability for O Visas
A term used to describe foreign national who are truly the best and brightest in their field.
In the field of science, education, business, or athletics, it means a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor.
In the field of arts, it means “distinction” (a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well known in the field of arts).
With respect to movies & TV production, it means a degree of skill & recognition significantly above that ordinarily encountered to the extent the person is recognized as outstanding, notable, or leading in the motion picture &/or TV field.
Consultation or Peer Advisory Opinion
Every O Visa application MUST obtain and submit a consultation or advisory opinion letter authored by the appropriate peer advisory group, such as a labor or management group or person who possesses expertise in the field
If there is a collective bargaining rep in the employer’s employees in which the foreign national will work, then the rep may serve as peer group for purpose of consultation
If no submission, then employer bears burden to show that no peer group exists
Advisory opinion must be in writing & signed
Any O Visa filing has two main components
THE MERITS
Does the foreign national qualify as extraordinary in his or her particular field of endeavor?
In the 1960’s The Beatles would have undisputedly been able to obtain O-1B visas
THE ITINERARY
What is the event that the foreign national is coming to the U.S. to perform?
This Photo by Unknown Author is licensed under CC BY-SA
The Itinerary
O-1 petitioner should submit a detailed itinerary that discusses the nature of each event
Include any contracts for performances, deal memos, or comparable proof of proposed schedule.
If fulltime employment, then letter of employment or employment contract could suffice.
The Agent for Artist Maluma may have submitted contracts and this itinerary in order to obtain an O-1B visa.
Contract between Petitioner & O Visa Beneficiary
O-1 petition must have contract between petitioner & beneficiary submitted with it showing terms of the agreement between the parties.
Contract should include but not be limited to: responsibilities to be provided with compensation, what the compensation will be, tentative timeliness regarding services to be successfully executed, and expected duration of professional partnership.
Valid contract means there is an exchange of something for the services provided
If there is only an oral agreement, then need to submit electronic correspondence between parties, an authorized synopsis of the terms of agreement, or other evidence that exhibits an oral agreement.
Duration
O-1 petitions can be granted for up to 3 years; however, USCIS will only grant the length of time that petitioner can show that the foreign national is actually needed in the United States. Thus, an O-1 visa could be as short as one day, or as long as 3 years. Length of time needed to complete specific itinerary of events dictates length of grant. A petitioner can and must apply for one-year extensions in order to have someone continue in O-visa status in order to complete an event or activity that qualified them for admission. There is no maximum period for which one can be sponsored in O-Visa status with extensions.
Petitioner must present evidence that beneficiary is top in the field in order to show MERITS for O-1 visa
Proving the Merits for O-1A: Demonstrating Extraordinary Ability
Demonstrated by beneficiary’s receipt of a major internationally recognized award, such as Nobel Prize, or evidence that shows 3 of the following 8 criteria:
Receipt of nationally or internationally recognized awards / prizes
Membership in associations requiring outstanding achievements
Published material about beneficiary & beneficiary’s work in field
Original scientific, scholarly, or business related contributions of major significance
Authorship of published scholarly articles in field
Receiving a high salary for services
Participation on as judge of other peers’ work in field
Employment in critical or essential capacity for organizations
Proving the Merits for O-1B: Demonstrating Extraordinary Ability
Extraordinary ability in the arts refers to a high level of distinction
Extraordinary ability in movies / TV refers to those that have achieved a level of superior accomplishment, like nomination or receipt of Emmy, Grammy, Academy Award or Director’s Guild Award.
Alternatively, evidence of 3 of the 6 will suffice:
Performed & will perform services as lead or starring role in productions / events of distinguished reputation
Achieved national / international recognition as shown by reviews, newspapers, journals
Performed & will perform services as lead or starring role for distinguished organizations & establishments
Record of major commercial or acclaimed success as shown by title, rating, or standing in field
Received significant recognition from critics, organizations, government agencies, & other experts
Commands a high salary for services rendered
Changes in Employment & Permanent Residency
Petitioner has duty to informed USCIS if there are changes in terms of O-1 visas employment
Some changes may require filing and approval of new O-1 petition
Additional events added for artist or entertainer will not require new petition, as long as they occur within the validity period of the petition and require foreign national of O-1 caliber
Foreign nationals seeking entry on an O-1 visa must prove they have a residence abroad that they do not intend to abandon, but they may still file for permanent residence without negative consequences
O-2 Visas: O Visas Applicants get to bring their “essential support” entourage.
Essential support personnel can also enter the U.S. alongside the foreign national using O-2 classification.
There is a separate petition for O-2 visa , but most uses of the O-2 category are easy to access because they must have a logical connection to the activities of the principal I-1 visa holder
This Photo by Unknown Author is licensed under CC BY-SA
O-2 Visas have different criteria based on which O-1 classification is sought
O-1 artist or athlete
O-2 must be coming to assist in the performance of the O-1 visa holder, be an integral part of actual performance, & hold and present critical skills & experience with the O-1 foreign national that are not general in nature
O-1 extraordinary achievement in movies / tv
O-2 must possess skills & experience specifically in collaboration with the O-1 foreign national that are not general in nature and are critical, either based upon pre-established & long working relationship, or in correlation with performance or show, and which continuing contribution is essential to the successful completion of that production
O-2 status is NOT allowed to accompany O-1 foreign nationals in the fields of science, business, or education.
Important to note that O-2 beneficiary must file a separate petition with USCIS, necessitating an advisory opinion, in order to obtain this status.
While authorized employment for O-2 category is petitioner specific, recipient is also required to provide support only to specified O-1 foreign national and no other
Common examples of O-2 support personnel ranges from hair & makeup artists, to voice coach for singer, or athletic trainer / coach for athlete.
British Author J. K. Rowling wrote the Harry Potter series, but have you ever hear of Lia Wyler?
The Harry Potter books are available in more than 68 languages. One of the contributors to the great success of the books is Brazilian Lia Wyler. She translated the English books into European Portuguese and Brazilian Portuguese, even giving local flavors to some of the characters’ names, whenever possible.
Therefore, if J.K. Rowling was traveling to the U.S. on an O-1B to give a lecture series on writing books that have internatonal appeal for book and movie development, then Lia Wyler may be part of her “essential support” if Lia were needed to play a role in helping J.K. Rowling present her marketing and distribution efforts of the Harry Potter series in Brazil and Portugal during her lecture series.
O-3 Nonimmigrant Visas: Spouse & Children of O-1 & O-2
Any spouse or unmarried children under the age of 21 may apply for O-3 to accompany spouse to the US, subject to the same period of visa validity as the O-1. While O-3 may not work in the U.S., O-3 may enroll in either full or part time academic study in U.S. without applying for a student visa.
Nobel Prize Winner in Chemistry Akira Yoshino may have his spouse apply for an O-3 if he enters as O-1
P Visas
must show nonimmigrant intent & mirrors the O-1 category by requiring supporting documentation.; however, it usually carries a lower threshold and is used for more specific purposes
Used for employer or a sponsor to bring athletes (P-1) and artists and entertainers (P-2)
P-1 Visas: Athletes
Atlanta hosted the 1996 Summer Olympics, and many people of extraordinary ability used P-1 visas to enter so they could compete in the games.
P-1 is for foreign nationals coming to the U.S. to compete as athletes at an internationally recognized level of performance, either as an individual or as part of a group or team, to perform as part of an entertainment group that carries an international reputation.
Artists & Entertainers
P-2 Visas
For foreign nationals coming to U.S. to perform as artists or entertainers on their own or as part of group under a reciprocal exchange programs between aligned professional organizations in U.S. & abroad.
Example: Irish PGA golfer Rory McIlroy playing in the Masters
P-3 visas
Foreign artists or entertainers coming to U.S. to perform, teach, or coach under commercial or noncommercial program that is culturally unique
Example: Ladysmith Black Mambazo, a South African male choral group who sings the mbube vocal style, coming to New York
Shared Requirements for P and O visa classifications
All P vias require the filing of a petition with USCIS
P visa requires consultation of “labor organization” if one exists in the field of endeavor to submit with application
Like the O visa, P requires a new visa petition if a change in employer or agent
P classification has a special provision for the trading of professional athletes from one team to another that allows employment authorization to continue for 30 days during which new petition is filed by new employer, and if timely filed, the employment authorization continues until application is decided.
P visas also have a merits and an itinerary components
P-1 Athlete: In order to meet standard must show foreign national or team meet two (2) of the following:
Participated with team to significant extent prior season with major U.S. sport league
Participated in international competition with national team
Participated to significant extent with college team
Written statement from official of a major U.S. sport league detailing how foreign national is recognized
Written statement from sport media or sport expert
Evidence individual or team is ranked
Evidence of significant honor or award in sport
Yu Darvish was traded to the Dodgers from the Rangers thanks to P-1 visa employment flexibility, which helped get the Dodgers to the 2017 World Series
P-1B Members of Internationally Recognized Entertainment Group must provide proof it has been together for at least one year, & received major international award or 3 of the following criteria:
Group has performed and will perform as a starring or lead entertainment group in productions or events that have distinguished reputation as evidence by reviews, critics, endorsements, etc.
Evidence group received international acclaim
Group has performed and will perform as a starring or lead entertainment group for organizations that have distinguished reputation, as evidenced by media
Group has a record of major commercial or critically claimed success
Significant recognition for achievements
Group command high salary
P-2 visa provisions for Artists or Entertainers under Reciprocal Exchange
Rooted in the nature of exchange agreements between artistic organizations, primarily unions.
Useful tool for stage and screen acting communities
P-2 status can be issued in one-year renewable increments to complete event or activity for which they were admitted.
Petition must include formal reciprocal exchange agreement between U.S. and abroad organization, statement from sponsoring organization, evidence of appropriate U.S. labor union involved in negotiating, and that foreign national are artists or entertainers with comparable skills and terms & conditions of employment are similar
P-3 Artists or Entertainers (Culturally Unique Program)
Must be able to demonstrate that the activity is culturally unique
Purpose of P-3 entering is of developing, interpreting, representing, coaching, of teaching a unique ethnic, folk, cultural, musical, theatrical, or artistic performance presentation.
Evidence to demonstrate cultural uniqueness must be submitted with application for P-3
The Silver Birds Steel Orchestra may qualify as culturally unique; however, their application for P-3 visas may be weakened by the fact that steel drums are also played outside of Jamaica, as steel drums originated in Trinidad & Tobago.
P-4 Spouse and Children of P Visa Beneficiary
Any accompanying spouse of either P principal beneficiary or supporting personnel and/or unmarried children under the age of 21 are eligible for P-4 classification
P-4 may NOT get employment auhtorizaiton
R-1 Visas for Religious Workers
U.S. has always prided itself on the protection of religious freedom; thus, it is not surprising that religious workers have their own visa classification.
Religious Worker defined: a minister or person working in a professional religious occupation or vocation, or has worked for the religious group in a religious occupation for at least 2 years immediately preceding the filing of a petition
Religious Vocation: position where the foreign national has undertaken a lifelong commitment to religious denomination, demonstrated by the adoption of vows such as for a nun or a monk.
Bona fide Nonprofit Religious Organization: a tax-exempt religious organization as cited in sec. 501(c)(3) of the IRA Code and possessing valid letter from IRS confirming tax-exempt status
R-1 Visas for Religious Workers
Must be coming to work at least 20 hours per week
For the last 2 years, foreign national has been a member of the same religious denomination as the petitioning religious organization status.
Central tenant is that duties must be affiliated with furthering the religious beliefs of the denomination
Thus, jobs can include religious teachers, choir leaders, missionaries, and religious broadcasters, and positions that promote the faith
Administrative positions and support services are not able to qualify as religious workers
(Saint) Mother Teresa
A Nun born in Albania, Mother Teresa was awarded a Nobel Peace Prize in 1979 and traveled to the U.S. to meet with President Ronald Regan. She is famous for caring for poorest people in the streets of Calcutta and inspiring millions with her example.
(14th) Dalai lama
Born in Tibet, the 14th Dalai Lama was awarded the Nobel Peace Prize in 1989 and traveled to the U.S. to meet with President Barack Obama. He describes himself as a “simple Budhist monk,” yet his teachings have worldwide influence over millions.
Either would have easily qualified for an R-1 visa based upon long ties with their religious organizations and promotion of the faith, but keep in mind that one not be an icon in their religion on order to qualify for an R-1 visa.
R-1 Nonimmigrant Workers
Compensation: there is no prevailing wage requirement, but the petitioning organization must still provide evidence of how it will compensate the foreign national.
