Alternatives to the H-1B: O-1B Visa

For those of you considering viable options to the H-1B cap (because you don’t want to put all your precious eggs in the same broken basket), I will be doing a deep-dive into the O-1B criteria over the next couple of weeks.

When determining whether someone is qualified for O-1B classification, I cannot emphasize enough how essential it is to read the regulations and the requirements in their totality.

What does this mean? Literally read each and every single word – do not summarize or abbreviate the criterion because this is where you get into trouble.

O-1B Deep Dive - Criterion 1

In my humble opinion, one of the criterion for the O-1B that causes the most confusion is evidence that the foreign national “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.” 8 CFR §214.2(o)(3)(iv)(B)

Problem

What’s so difficult about this criterion? Why do so many people get it wrong? To satisfy this criterion, you must make a three-part showing:

1. The artist has performed (in the past) services as a lead or starring participant AND

2. The artist will perform (in the future) services as a lead or starring participant AND

3. The artist’s role as a lead or starring participant was and will be in productions or events that have a distinguished reputation.

First, many petitions include evidence of past performances OR future performances in a lead or starring role, and not both. To qualify the artist’s past performances AND future performances must be in a lead or starring role.

Second, many petitions do not establish that the productions or events have a distinguished reputation.

Third, many petitions use the terms “lead” and “starring” interchangeably, when these mean two different things. For USCIS, a lead role means a principal role in the event or production, while a starring role means a position of great prominence relative to others in the event or production.

Pro Tips

First, read the Regulations and USCIS Policy Manual, in particular, “Appendix: Satisfying the O-1B Evidentiary Requirements” carefully and ensure that you are providing documentary evidence that satisfies the entirety of the criterion, not just a summary of what you think it means (or worse, only what you have evidence to show).

Second, include relevant evidence to this specific criterion. What does that mean? The evidence may include critical reviews, advertisements, publicity releases, publications, contracts, or endorsements. If this independent evidence is not sufficient to identify how the artist’s role was leading or starring, you can supplement with endorsement (letters) from the artist’s employer(s) to confirm the artist’s leading or starring role.

Third, work with a qualified business immigration attorney who is experienced in representing, preparing and filing O-1B petitions for artists. It is essential to understand the changing definitions, regulatory interpretations and adjudicative priorities of USCIS in order to present the strongest possible petition.