Assuming that you have a proper petitioner, a consultation letter from an appropriate labor union or peer group, and an itinerary of the work you will be doing over the next 3 years, you are now all set to prove to USCIS that you qualify as “extraordinary” for the O visa. In this new series of posts we take an in depth look at the evidentiary criteria that USCIS uses to determine if a person qualifies as “extraordinary”.
Under § Sec. 214.2(o) To qualify as an alien of extraordinary ability in the field of arts, the alien must be recognized as being prominent in his or her field of endeavor as demonstrated by the following:
(A) Evidence that the alien has been nominated for, or has been the recipient of, significant national or international awards or prizes in the particular field such as an Academy Award, an Emmy, a Grammy, or a Director's Guild Award; or
(B) At least three of the following forms of documentation:
( 1 ) Evidence that the alien has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications contracts, or endorsements;
( 2 ) Evidence that the alien has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications;
( 3 ) Evidence that the alien has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials;
( 4 ) Evidence that the alien has a record of major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion picture or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications;
( 5 ) Evidence that the alien has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the alien is engaged. Such testimonials must be in a form which clearly indicates the author's authority, expertise, and knowledge of the alien's achievements; or
( 6 ) Evidence that the alien has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence; or
(C) If the criteria in paragraph (o)(3)(iv) of this section do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence in order to establish the beneficiary's eligibility.
(A) Evidence that the alien has been nominated for, or has been the recipient of, significant national or international awards or prizes in the particular field such as an Academy Award, an Emmy, a Grammy, or a Director's Guild Award; or
(B) At least three of the following forms of documentation:
( 1 ) Evidence that the alien has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications contracts, or endorsements;
( 2 ) Evidence that the alien has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications;
( 3 ) Evidence that the alien has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials;
( 4 ) Evidence that the alien has a record of major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion picture or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications;
( 5 ) Evidence that the alien has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the alien is engaged. Such testimonials must be in a form which clearly indicates the author's authority, expertise, and knowledge of the alien's achievements; or
( 6 ) Evidence that the alien has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence; or
(C) If the criteria in paragraph (o)(3)(iv) of this section do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence in order to establish the beneficiary's eligibility.
For this post, we will focus on the first evidentiary criteria which is “that the alien has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications contracts, or endorsements”. An applicant must demonstrate that they meet all of the requirements laid out in each evidentiary criteria section before USCIS will count that criteria as met. Here are the key points an applicant should note when determining whether or not they can meet this criteria.
“The alien has performed, and will perform”
Luckily, because the law states that activities in the past, coupled with the present count, a client may be able to increase the number of credits towards the visa application if they have documentation that the production has happened in the past, or will happen. However, because of the word “and”, if an alien has not performed such duties in the past and will only do so in the present, the future activities are considered speculative and cannot be used. Also, sometimes clients may state they worked on a production on their resume but do not have documentation to prove that the production actually happened. Unfortunately, those credits cannot be used as USCIS is unable to verify whether the artist has performed such duties.
Luckily, because the law states that activities in the past, coupled with the present count, a client may be able to increase the number of credits towards the visa application if they have documentation that the production has happened in the past, or will happen. However, because of the word “and”, if an alien has not performed such duties in the past and will only do so in the present, the future activities are considered speculative and cannot be used. Also, sometimes clients may state they worked on a production on their resume but do not have documentation to prove that the production actually happened. Unfortunately, those credits cannot be used as USCIS is unable to verify whether the artist has performed such duties.
“Lead or starring participant”
This refers to the type of role that the applicant has played in the production. For example, if the production is a play (Romeo and Juliet), clearly if the applicant has played either Romeo or Juliet, they can be considered a lead. Things get fuzzier with lesser characters. What about the Nurse? What about Juliet’s parents? Are those considered “lead”? The answer is probably not, but they may qualify as “starring” if you can prove that the role was a large enough. In contrast, ensemble roles do not qualify. Even if the applicant has been on Broadway, if the role is that of an ensemble member, the credit will not be enough to prove this evidentiary criteria.
This refers to the type of role that the applicant has played in the production. For example, if the production is a play (Romeo and Juliet), clearly if the applicant has played either Romeo or Juliet, they can be considered a lead. Things get fuzzier with lesser characters. What about the Nurse? What about Juliet’s parents? Are those considered “lead”? The answer is probably not, but they may qualify as “starring” if you can prove that the role was a large enough. In contrast, ensemble roles do not qualify. Even if the applicant has been on Broadway, if the role is that of an ensemble member, the credit will not be enough to prove this evidentiary criteria.
“Productions or Events which have a distinguished reputation”
This refers to the quality of the production itself. Assuming that the applicant has indeed played a “lead or starring role”, the credit will not be counted if the production itself is not distinguished. Even though there is no clear definition of what “distinguished” really is, a production that has garnered some press, was featured at a quality venue, and had a significant number of attendees, usually qualifies as “distinguished”. In contrast, a play that was produced in someone’s apartment and had no audience cannot be considered “distinguished”. Since it is up to the applicant to prove that a production is distinguished, as much evidence about the production should be provided.
This refers to the quality of the production itself. Assuming that the applicant has indeed played a “lead or starring role”, the credit will not be counted if the production itself is not distinguished. Even though there is no clear definition of what “distinguished” really is, a production that has garnered some press, was featured at a quality venue, and had a significant number of attendees, usually qualifies as “distinguished”. In contrast, a play that was produced in someone’s apartment and had no audience cannot be considered “distinguished”. Since it is up to the applicant to prove that a production is distinguished, as much evidence about the production should be provided.
“Evidence”
According to the regulations, the types of evidence generally accepted are “critical reviews, advertisements, publicity releases, publications contracts, or endorsements” Sometimes, the documentation the applicant has does not readily fall into these firm categories which is why it is essential to work with an experienced attorney who will be able to guide you to presenting the best evidence available for your work.
In short, if an applicant can demonstrate that they played a “lead or starring role” in a “production that is distinguished” and have sufficient documentation to prove all of this, they should be able to qualify for this evidentiary criteria.
For more information about the O1 / Artist visa check out our O1 / Artist Visa Application Guide and O1 / Artist Visa Immigration FAQ.
Immigration law can be convoluted and complex. At the Law Offices of Marcus Yi, we are NYC based O1 / Artist Visa lawyers devoted to guiding you through US immigration law. Contact us today to schedule a consultation.
According to the regulations, the types of evidence generally accepted are “critical reviews, advertisements, publicity releases, publications contracts, or endorsements” Sometimes, the documentation the applicant has does not readily fall into these firm categories which is why it is essential to work with an experienced attorney who will be able to guide you to presenting the best evidence available for your work.
In short, if an applicant can demonstrate that they played a “lead or starring role” in a “production that is distinguished” and have sufficient documentation to prove all of this, they should be able to qualify for this evidentiary criteria.
For more information about the O1 / Artist visa check out our O1 / Artist Visa Application Guide and O1 / Artist Visa Immigration FAQ.
Immigration law can be convoluted and complex. At the Law Offices of Marcus Yi, we are NYC based O1 / Artist Visa lawyers devoted to guiding you through US immigration law. Contact us today to schedule a consultation.
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