O VISAS

FOR ARTISTS, ATHLETES, ENTERTAINERS AND OTHERS

The “O” category of visas is a special category for highly talented or nationally or internationally acclaimed foreign nationals who may not qualify for other types of work-related visas.  This category is often used by artists, athletes, entertainers, skilled high-end chefs, and business professionals who lack professional degrees.

The O category can be a useful alternative to the H-1B program because it lacks many of the restrictive features and has no cap. This article will give a general introduction to O visas. 

Who qualifies for an O visa?          

The O category is not for everyone.  O-1 beneficiaries in the sciences, arts, education, business, or athletics must demonstrate extraordinary ability, as shown by “sustained national or international acclaim.” This is a high standard where business persons, scientists, educators, and athletes are concerned. But “extraordinary ability” is a much lower standard as applied to artists and entertainers.  You must also show that you are coming to the U.S. to continue working in your area of extraordinary ability.

What achievements show extraordinary ability?

Individuals applying based on achievements in the sciences, arts, education, business, or athletics must show “a level of expertise indicating that the person is one of the small percentage who have arisen [sic] to the very top of the field of endeavor.”  This means showing evidence either of the beneficiary’s receipt of a “major, internationally recognized award, such as the Nobel Prize,” or documentation of at least three achievements, such as:

• Receipt of nationally or internationally recognized prizes/awards for excellence in the field;
• Membership in associations in the field that require outstanding achievement of their members, as judged by recognized national or international experts; or
• Published material in professional or major trade publications or major media about the alien.

For those in the arts, “extraordinary ability” means “distinction, which means “a high level of achievement in the field of 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.”  The arts are broadly defined to include “any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts.”  These applicants must show either that the beneficiary has been nominated for or has received a significant national or international award or prize, such as an “Academy Award,” or meet at least three additional criteria, including performances in a critical production; national or international recognition for achievements; and/or demonstrating a record of major commercial or critically acclaimed success.

How long can I stay on an O visa?

There is no limit on the amount of time you can stay on an O visa, except that the stay is authorized for the period of the “event” that is the basis for the trip.  CIS will grant O visas initially for an initial period of up to three years to complete the event or activity in question.  Extensions are then available for one year at a time.

Can I get a green card?

It is possible to apply for permanent residence through another channel without risking losing O-1 status. However, O-2 holders can only come to the United States temporarily and must maintain a residence abroad they do not intend to abandon.

How do I apply?

A U.S. employer or U.S. agent must petition for the foreign worker. The foreign worker must provide extensive documentation of her accomplishments. Also, a consultation from a labor union is required before an O petition may be adjudicated if a union has a collective bargaining agreement in the field that the O petitioner seeks to work in.

Can I bring my family with me?

O-1 visa holders can bring their spouse and children through the O-3 category.  In addition, the O-2 category is for certain aliens accompanying O-1 aliens in the arts or athletics who will assist in the O-1’s performance.

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CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced immigration law for over 25 years.   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C. 

Mr. Kerosky has been recognized as one of the top lawyers in Northern California for 9 years by “Super Lawyers” Magazine.  See www.superlawyers.com. 

WARNING: The article above is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.

VISA OPTIONS IF YOU’RE TOO LATE FOR AN H1B VISA .

As predicted, within days, the visa quota for the H1b professional visa was used up in April this year. The U.S. Citizenship and Immigration Service (USCIS) announced this week that it has reached the congressionally-mandated 65,000 H-1B visa cap for fiscal year 2019. USCIS has also received a sufficient number of H-1B petitions to meet the 20,000 visa U.S. advanced degree exemption, known as the master’s cap. 

So what are your options if you or your employee have gotten your H1b application in time?  What if you are not eligible for an H1b visa?

This article will provide an overview of these non-immigrant visas in the U.S. based upon employment or business purposes.  Some of these options surely will not apply; but perhaps there is one or more that can provide a short-term or long-term option for you or your employee.

F-1 visa: Student visa.  Visa for an unspecified period of time while the student is enrolled full-time in an approved program of study.  This may be a good option if you were a student before applying for the H1b and you can extend your study or go back to school.  It usually is an expensive solution as you need to study full-time and pay international student tuition.  Generally, you cannot work with this visa.

J-1 visa: Training visa.  Visa for up to 18 months while the person is enrolled in an approved program of training for a specific company.   This can be a good option for persons having completed college recently.  You obtain a work permit, but it is supposed to be “on-the-job” training only.

         B-1 visa: Business visa.  Available to persons doing business in the U.S.  It is usually valid for six months or less, but may be extended in the U.S. by simple application to the CIS.  This can be a possibility to extend your time here in order to search for business partners and contacts, as long as you adhere to the visa terms: no working, visa ends in six months or less. 

B-2 visa: Tourist visa.  It is usually valid for six months or less, but may be extended in the U.S. by application to the CIS.  This can provide a short-term solution, allowing the foreign national to stay a few months longer before returning home for touristic reasons.  Filing the extension application automatically extends one’s legal stay in the U.S. until a decision is reached.

L-1 visa: Intra-company transferee.  This is a good option for foreign nationals employed by a multi-national company doing business here.  A visa for an executive or person with specialized knowledge, sponsored by a company abroad with a related company here.  The first visa is valid for 1 year , but may be extended up to 7 years.  It provides the right to work for the sponsoring company.  Does not require that the applicant have a degree.

E visa: Treaty trader or investor visa.  This is a good option if you happen to have a “substantial” amount of money to invest in the U.S. and want to start a business here.  Requires a treaty with the country of origin of the applicant and substantial investment in the U.S. or trade with the U.S.

R-1 visa: Religious worker.  A visa for persons sponsored by a religious institution, valid for 2 years but may be extended.  A very good alternative for persons offered work by a church, synagogue, school or other religious institution.

O/P visa: Artist or entertainer.  A visa allowing artists, entertainers or athletes to stay in the U.S. for the purpose of specific performances for a specific limited period.  The government requires that they document their “outstanding” qualifications and “international acclaim”.   The standards are quite high.

Every person’s unique case must be evaluated specifically to determine which non-immigrant visa might offer the best chances for extending their legal status here.  These categories are not broad and the options are limited, but in many cases, one may find a solution if their H1b visa dreams were unfulfilled this year.

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CHRISTOPHER A. KEROSKY is a partner with Wilson Purves in the law firm of KEROSKY PURVES & BOGUE, with offices located in San Francisco, Santa Rosa, Ukiah, Napa, Walnut Creek, San Jose and Sacramento.  Mr. Kerosky has been an attorney licensed to practice law in California for 25 years.  He is a graduate of UC Berkeley (Boalt Hall) School of Law and a former trial lawyer for the Civil Division of the U.S. Department of Justice in Washington D.C.  For 8 years, he has been honored as one of Northern California’s top lawyers by San Francisco Magazine, “Super Lawyers” edition.  Mr. Kerosky speaks English, Spanish and Polish and has also working knowledge of Russian.

WARNING: The article above is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.