Artist Visa and Green Card Basics
What professionals have “abilities in the arts” for immigration purposes?
The range of professionals eligible for artist visas and green cards is much broader than one might think, extending well beyond simply the fine and performing arts. In fact, according to 8 CFR § 214.2, “Arts includes 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, flight masters, stage technicians, and animal trainers”.
This means that a beneficiary need not necessarily be the principal creator of “art”. Instead, they can be teachers, administrators, documentarians and even, potentially, skilled craftsmen, as long as they use creative judgment and apply imagination to the enhancement or preservation of a creative act.
Types of Nonimmigrant Artist Visas
Generally speaking, individual foreign artists must petition for an O-1B visa, whereas foreign performance groups petition collectively within the P-1B or P-3 visa categories. The processes are essentially the same: a labor organization consultation, an USCIS petition, and, finally, the consular interview. The main differences lie in duration and standard of proof. An O-1B visa may be granted for a period of up to 3 years and requires proof of “extraordinary ability in the arts”. The P-1B visa may only be issued for a period of 12 months at a time and requires the group in question to show that it - not its individual members - “has been recognized internationally as outstanding in the discipline for a sustained and substantial period of time.” P-3 visas are specifically for individuals or groups coming to the United States “for the purpose of developing, interpreting, representing, coaching, or teaching a unique or traditional ethnic, folk, cultural, musical, theatrical, or artistic performance or presentation.” An U.S.-based visa petitioner, which can either be the employer or a designated agent-petitioner, is mandatory in all cases.
Because of the level of discretion afforded to the USCIS officers reviewing such petitions, immigration attorneys, such as Immigration Law Office of Rey Hulme, can be invaluable in determining the potential issues in each unique case.
But do you even need an artist visa?
If the primary purpose of your performance in the U.S. is to entertain, the answer is a resounding yes. This is the case even if you are performing for free. The key difference between an artist visa and a tourist visa is that a tourist visa does not allow for work permission. Some narrow exceptions do exist. If, for instance, you are merely performing an audition or as part of a recognized showcase - the purpose of which is not primarily to entertain - you may be allowed to do so without work authorization.
Relying on this so-called “showcase exception” does come with some risk, since you would be relying on the very broad discretion of the border official at your point of entry who is not obligated to apply this guideline. That is to say, you do not have an enforceable right to entry the United States under any circumstance. They might, completely subjectively and without much explanation, feel you have failed to prove the non-entertaining primary purpose and send you back home. They might be unsatisfied with the nature of the apparent “showcase”.
Can you apply for a P-1 or O-1 visa yourself?
No. You are required by USCIS to have a U.S.-based person or entity petition for you before you can seek a consular interview to obtain the actual visa. The petitioner need not necessarily be the entity for whom you will perform, nor do they necessarily have to be a member of the the art world. In the absence of more concrete guidelines from USCIS, it is assumed that almost any U.S.-based entity can function as an agent-petitioner, provided that the employers (the entities for which you will perform) authorize the agent-petitioner to act on its behalf via a signed statement. By contrast, an employer need not be a U.S.-based entity and can even be wholly or partly owned by the beneficiary, provided that a bona fide employer-employee relationship exists, which USCIS regards to be "indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee". However, no entity may be used simply to function as a smoke screen for "self-employment," which is not allowed.
Do you need a confirmed gig in the United States?
Yes, at least to some degree. USCIS does not permit you to obtain an artist visa in order to subsequently find presenters or performance venues. If not a signed contract, you’ll need a letter of intent, invitation, email correspondence, etc. - something that establishes that anticipated performance are lined up. The exact ambit of the events do not necessarily need to be set in stone, but there must be some manner of good faith basis underlying its inclusion in the itinerary. The good news is that you can add events within the approved timeframe as long as the new engagements do not give rise to a “material” change regarding the nature of employment, and the employers, described in the approved petition. In other words, the visa does not specify the number of events you may perform. Rather, the artist visa specifies a timeframe within which you may perform within your area of extraordinary ability and at least one employer included in the approved petition must be affiliated with each new engagement. This is why it is particularly useful for performing artists to consider including a booking agent, or the like, as one of their named employer, which can then seek out, negotiate and coordinate additional gigs post-approval.
Do your support staff also need work permission?
Yes. Your support personnel - stage director, tour manager, sound engineer, etc. - will have to petition for a separate O-2 or P-1S visa, depending on which category the related artist/group opts for. The process is similar, albeit likely involving different labor organizations, and incurs essentially the same costs.
Is it possible to fast track a petition?
Indeed it is. But it is much more expensive. You can have USCIS process your petition in 15 business days via “premium processing”. For which they request an additional fee of $2,805.
Can you arrive before and depart after the dates specified in your artist visa?
It is USCIS policy to allow entry into the U.S. 10 days before and departure 10 days after the dates in your artist visa. It is very important to note that you may not perform work of any kind - including free performances - during the days outside of those specified in your visa. Also bear in mind that the discretion of the Customs and Border Protection (CBP) official is large, so proceed with caution and have an itinerary in hand.
What if your performance group has many new members?
USCIS requires evidence that 75% of the group’s members have had a “sustained and substantial relationship” with the group for at least 1 year. As always, what exactly is “sustained” and “substantial” is at the discretion of the USCIS officer reviewing your case. The more evidence, the better. Note that it is possible to request a waiver on the basis of exigent circumstances, and that this requirement does not apply to sufficiently recognized circus groups.
Can dependents of P and O visa holders travel along?
Yes, dependents of P and O visa petitioners may use the approved petition to obtain a visa (O-3 or P-4) directly from the consulate abroad. Dependents may not work, but may engage in some educational programs.
How Long do Artist Visas Take?
USCIS processing times can vary greatly and unexpectedly. Petitions generally do take a few months from beginning to end, although we have, on occasion, received approval in a matter of weeks. It can be unpredictable due to the discretionary powers involved. Summer months - when demand is at its peak - tends to be particularly busy and can result in delays beyond USCIS’s own processing estimates. Erring on the side of caution, we recommend allowing a total of at least 5 months for the entire process. The more time, the better. An expedited application is always possible, albeit at a hefty additional fee payable to USCIS.
The actual consular processing of your visa, which takes place abroad once your petition has been approved by USCIS, tends to require only 7-10 days, depending on the consulate. As always, allowing ample time is strongly advised. It is also advisable to go ahead and schedule the consular interview well in advance since it is not uncommon to see the earliest appointment slots at least a month, or even a few months, out. The good news is that you need not wait for your petition to be approved before scheduling an appointment. All you need is the petition receipt number USCIS issues upon receiving the petition. USCIS provides timeline estimates on its website (see below).
The labor union consultation, which is the very first process, usually takes between 5 days and 2 weeks, although some labor organizations offer expedited services.
Extra Artist Visa Info
For common artist visa issue: https://www.hulme-law.com/blog/o1-p1-artist-visa-issues
For the USCIS description of the O-1B visa: https://www.uscis.gov/working-united-states/temporary-workers/o-1-visa-individuals-extraordinary-ability-or-achievement
For the USCIS description of the P-1B visa: https://www.uscis.gov/working-united-states/temporary-workers/p-1b-a-member-internationally-recognized-entertainment-group
For artists or entertainers part of a “culturally unique program”: https://www.uscis.gov/working-united-states/temporary-workers/p-3-artist-or-entertainer-coming-be-part-a-culturally-unique-program
For visa appointment wait times at your consulate: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/wait-times.html
What about Green Card Options for Artists?
Depending on the unique circumstances of the case, an artist may have several potential green card options available to them. For instance, an artist working within their “speciality occupation” with an employer in the U.S. may pursue traditional routes such as H-1B, whereby the employer petitions on behalf of the artist and completes a labor certification, which, after potentially burdensome administrative steps, confirms that no suitable U.S. person is able, willing, qualified and available to accept the opportunity. However, this discussion will focus on two categories available to artists that do not need a U.S.-based employer, and do not require the labor certification process. The benefit of this is enormous. Not only do such artists not have to convince a U.S.-based employer to navigate regulations and pay for immigration status, the artist beneficiary can self-petition and, once approved, can work for any employer within their area of extraordinary ability. Here are the two primary categories to consider:
a. EB-1A
The EB-1 category is for those that are “able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim”. Barring a major international award (think Grammy, Oscar, etc.), USCIS provides 10 criteria of which the beneficiary must satisfy at least three:
Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence;
Evidence of your membership in associations in the field which demand outstanding achievement of their members;
Evidence of published material about you in professional or major trade publications or other major media;
Evidence that you have been asked to judge the work of others, either individually or on a panel;
Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field;
Evidence of your authorship of scholarly articles in professional or major trade publications or other major media;
Evidence that your work has been displayed at artistic exhibitions or showcases;
Evidence of your performance of a leading or critical role in distinguished organizations;
Evidence that you command a high salary or other significantly high remuneration in relation to others in the field; and/or
Evidence of your commercial successes in the performing arts
In addition, USCIS will consider the petition as a whole to determine whether it truly meets the threshold, which is substantially higher than, say, the “extraordinary ability” encountered in the O-1 context. The USCIS Policy Manual provides some guidance as to interpretation.
The important point to remember, as with any category based on open-ended thresholds such as “extraordinary ability,” is that it is crucial to explain the significance of your achievements in full. If, for instance, you performed in an important festival, we would want the program confirming that you really did perform, press/reviews making mention of your performance, press about the significance of the festival as a whole, information about significant artists with whom you may have performed or who might have previously performed there, etc. The same goes for prizes, reviews, and the like — we must assume that the officer reviewing your petition is not familiar with any art institutions, venues, personalities or awards, even if they are well known within the industry.
b. EB-2 National Interest Waiver
The exceptional ability standard here is lower than in the EB-1 context, but, in the absence of a national interest waiver, an EB-2 petition requires a U.S. employer to act as sponsor and complete the labor certification process, which seeks to show that no suitable U.S. person is able, willing, qualified and available to accept the opportunity in question.
However, it may be possible for an artist to self-petition without the involvement of a U.S. sponsor, whilst also avoiding the labor certification requirement. This is done by a National Interest Waiver (NIW). In short, the artist beneficiary must convince USCIS to waive the labor certification due to U.S. national interest based on the following factors:
The proposed endeavor has both substantial merit and national importance;
The beneficiary is well positioned to advance the proposed endeavor; and
On balance, it would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.
It is very important to note that it is required to prove that the proposed endeavor has national (not just local or regional) interest. Crucially, this national interest can indeed be cultural in nature and need not necessarily be accompanied by a national economic impact. As with the other factors, this open-ended threshold should be motivated in great detail with the use of case law.
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