O-1 Visas and the Fashion Industry

US Immigration and the Fashion Industry

The fashion industry is very much like a traveling circus in that the top fashion models have to travel the major cities of the world for perhaps for a few days at a time.  In addition to the models come their entourage of stylists, photographers, wardrobe, make up artists and assistants. The entire crew must to be able to travel effortlessly throughout the fashion world.

When is comes to traveling to the US it’s very important to establish good immigration management, this must be in place to ensure that everyone is allowed into the US to perform the work they have all been hired to do. There is nothing worse than a vital team member being denied entry to add drama to a situation.

The American Customs Border Patrol Officer (CBP) who you meet at the arrivals gate has a great deal of discretion and therefore power in deciding whether or not to let the alien into the US. They have the right to refuse entry even if the alien has a valid visa allowing them to do what they came for.  There have been many news stories in the media about celebrities whom have been denied entry into the US for one reason or another.  Whilst the news story might be short-lived, such incidents can have serious financial consequences for those involved. Also, future visits to the US in order to work could be jeopardized also.

So if your business involves the recruitment and hiring of aliens that will need to travel to the US to work then it’s very important have an immigration strategy and management system in place to make sure the problems are avoided before they become expensive dramas.

The O-1 Visa: Aliens of Extraordinary Ability:

This visa is one of the highest caliber visas one can apply for. In order to qualify for an O-1 visa you must be able to demonstrate to United States Immigration and Citizenship Services (USCIS) that you are amongst the very best in your field.

The O-1 visa enables a professional to enter the US to work on an assignment in their field. The visa is very powerful because of the speed within which it can be issued, typically 14 days or less. The O-1 visa is also unique because, as it can be renewed indefinitely, it enables the alien to make the US their home. Therefore, even after a particular assignment is completed the alien can stay on in the US to take on other assignments as they come up.

Ultimately, the alien can trade in their O-1 visa for a green card.  O-1 visas are very much a status symbol because it means that they have been recognized by the US government as a person of extraordinary ability and as such the immigration red carpet is laid out for the alien to make it as easy as possible for them to stay.

O-1 visa holders can of course travel in and out the US with ease as often as their career and world-wide assignments demands.

Establishing the Alien has an Extraordinary Ability:

In many cases it’s very easy to show that an alien is at the very top of their profession. For example, should the alien receive a nomination for a national or international award.  However, there are many other ways to establish extraordinary ability to the satisfaction of USCIS. High earnings can be one measure. Earnings can be determined on a per assignment basis or on an overall yearly basis, it would depend on which measure would put the alien in the best possible light.  Another measure, in the fashion industry, might be to collate references from leading figures in the industry like designers, photographers or even the modeling agency themselves, promoting that fact the fact that a particular alien has an extraordinary ability.

What is often surprising is the number of professionals who do not consider themselves as having an extraordinary ability when in fact they perhaps do. Qualifying for O-1 status is as much a sales pitch to USCIS as much as anything else. If an alien is undersold then it is unlikely that any application will be successful, however, if the full weight of evidence is packaged and presented to USCIS positively then it is possible to get many aliens approved  by persuasion rather than a clear cut yes or no decision.

There are two keys to success here, the first is to be relentless in gathering sufficient evidence to make an overwhelming case. The second is being extremely confident in making the argument – the two must go together.

Other Extraordinary Ability Categories:

As stated above, the O-1 visa is for anyone who can establish themselves as being at the very top of their profession. Make-up artists, stylists, photographers, seamstresses and designers are just some of the categories that should be considered.

Let’s take a make-up artist or a seamstress for example. These careers may not command high salaries in comparison to, say, a photographer, designer or model. However, as long is it could be shown that their salaries were high when compared to their peers then this would be one measure going towards establishing themselves as having extraordinary ability. Another measure would be the types of projects they might have worked on such as working on assignments linked to major designers, photographers or magazines.

Again, when trying to recruit international talent to the US it’s very easy to skip consideration of the O-1 visa as even a viable option.

O-2 Visa: The Entourage Visa:

The O-2 is commonly called the entourage visa because this visa is given to an alien whose work is very closely related to the work of an O-1 alien.  For example,  the leading fashion models may have certain personnel that follow them wherever they go to help them perform. An O-1 alien may work with a crew consisting of a make-up artist, seamstress and colorist that work together to ensure the O-1 alien can do their job. O-2 is not available to members of the O-1 alien’s crew who are not considered to be essential to the alien’s performance.  Therefore, an O-1 alien could not recruit an O-2 to handle their luggage or be their general assistant ‘go-for’.  An American could just as easily to take on that task as opposed to specially hiring an alien O-2.

O-2 aliens may only work for their O-1 sponsor and the O-2’s visa lasts as long as their O-1 sponsor’s visa. This is a great feature because this means the O-2 could stay in the US indefinitely as long as they maintained that close working relationship with their O-1 sponsor. However, if the relationship between the O-1 and O-2 does come to an end, then unless the O-2 can qualify for any other available visa they must leave the US when their visa expires.

Spouses of O-1’s can work in any field, but spouses of O-2’s may not work unless they qualify for a working visa in their own right.

O-1 to Green Card:

An O-1 alien having established themselves as a person of extraordinary ability can apply for an EB1 Green Card. The EB1 is simply the category under which the alien applies for their green card. All green cards are actually the same, but they are applied for under various categories. For example, some are applied for because of marriage, others may be types of employment.

Each year there are 40,000 Green cards set aside exclusively for aliens of extraordinary abilities.  40,000 green cards may seem a large number but these annual quotas can run out during the year so it’s important to make sure the application is made as close to October 1st (which is the annual release date) as possible.

O-2 to Green Card:

Because an O-2 alien is not considered as someone having extra ordinary ability then they cannot trade their O-2 for a green card, unless they are first able to demonstrate that they should now be considered as having extraordinary status. An O-2 does not have to first apply for an O-1 and then apply for a green card – they can apply directly for a green card.

O-1 or Green Card:

In truth an alien of extra ordinary ability can apply for an O-1 or EB1 green card or both at the same time.  Both visas are based on the same qualifying criteria; extraordinary ability. So in theory if you qualify for the O-1 you should automatically qualify for the EB1.  An alien would apply for an O-1 if they have no intention of making the US their home and just want to work in the US from assignment to assignment. When an O-1 is first issued it can be issued for 3 years and cover multiple entries during that time. The O-1 can be processed very quickly indeed and there are no annual quotas to worry about.  So if an alien had a sudden lucrative assignment in the US then the O-1 would be the first option. However, if an alien wanted to make their home in the US to build or continue their career then they could apply for the EB1. The EB1 could take 6-9 months or so to process so if time is of the essence, an alien might file the O-1 to get to the US as quickly as possible and at the same time the EB1 so that as soon as the EB1 green card became available, they would just trade in one for the other.

Spouses of O-1 Visas or Fiancé(e)s of O-1 Visa Holders:

This can be quite a tricky area to navigate. An O-1 alien can bring their spouse and children to the US at the same time as their O-1 is granted. If an O-1 alien has a fiancée they must get married before the O-1 applies for green card status so that their new spouse is also granted green card status at the same time. If the O-1 alien obtains green card status and then marries then it could take years for the green card holding alien to be able to bring their spouse to the US. Before changing from O-1 to green card careful consultation with your immigration attorney is a must. Just remember, marriage first then green card application.

Conclusion:

The O-1, O-2 and O-1 to green card options are much underutilized visas. My goal here has been to shed a little extra light on these visas. My office is available to discuss developing immigration strategies for your international work force.

We’ve only scratched the surface here as these visas can be part of a larger visa portfolio of coordinated immigration options, so that a steady flow of international aliens can be maintained at all times.

Copyright 2007 Chris Ingram, LL.M., ESQ.