There are two main types of visas available to entertainers, athletes, outstanding persons in the sciences, arts, education, business, and motion picture or television industry to enter the U.S. for temporary period of time: They are the "O" or "P" nonimmigrant visas.
The "O" visa allows foreign nationals with demonstrated extraordinary ability or achievement to obtain a temporary working visa. In order for the foreign national to qualify as an alien of extraordinary ability in the arts, the government requires proof of "distinction". Distinction in the visa context is defined as a "high level of achievement in the field of arts as evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person is described as prominent, leading, or well-known in the field."
Different standards of proof-documents required-apply to the different categories. For example, one attempting to enter the United States as an individual artist is subject to a different standard than a scientist. Since most of our present O visa pertain to members of the entertainment industry, this article will address the requirements of artists and entertainers, not scientists and athletes.
The applicable code of federal regulations requires evidence that the person at issue has been nominated for or received significant national or international awards in their field of endeavor. Additionally, at least 3 of the following must be shown with respect to motion picture and television productions:
- The alien has or will perform in a lead or starring role in a major event of distinguished reputation;
- Has achieved national or international recognition for his achievements as evidenced by critical and objective reviews;
- Past performances as a lead or star in events of distinguished reputation;
- Record of major commercial successes as evidenced by ticket sales, sponsors and other re-numeration;
- Has or now commands a high salary;
- Receipt of significant recognition from experts in the field.
The "P" visa is for internationally recognized performers/athletes that are traveling to the United States to perform in a concert series or other type of competition. The performance can be for an individual or as part of a larger internationally recognized group. Generally, P visas are more appropriate than O visas for group artists entering the United States on trips of limited duration. "P" visas are often easier to obtain for the following purposes:
- To perform individually or as part of a team at an athletic competition with an internationally recognized level of performance
- To perform with an entertainment group that has been internationally recognized in its field (the individual must have had at least 1 year relationship with the group as a performer or provides functions integral to the performance)
- To perform in a reciprocal exchange program between a U.S. organization and one or more foreign exchange organization that provide for the exchange of artists and entertainers; or
- To perform, teach, or coach as an individual or part of a group on a program that is culturally unique.
Both the "O" and "P" non-immigrant visas enable the individuals to have their essential support personnel and family travel with them as their derivatives. The petitions must be filed with supporting documentation to prove "extraordinary" ability in the arts, sciences, education, business or athletics. In most cases, the petitioner/employer must also obtain a consultation from an appropriate union or peer group regarding the nature of the work to be done and the qualifications of the foreign national.
The term "extraordinary ability" as used in the Immigration and Nationality Act, is a rather precise phrase since it is defined in the Code of Federal Regulations as a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of his field (8 C.F.R. Section 204.5(h)(2)).
Section 203(b) of the Immigration and Nationality Act provides in pertinent part that Aliens with Extraordinary ability are eligible to file for EB-1 immigrant petitions as Priority Workers (EB-1: Employment Based First Preference). This means that the O or P foreign national must have demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation, and seeks to enter the United States to continue to work in the area of extraordinary ability, and show that his/her entry into the United States will substantially benefit prospectively the United States.