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 6
The criterion at 8 CFR §214.2(o)(3)(iv)(B)(6) requires evidence that the artist “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”.
Problem
What’s so difficult about this criterion? Why do so many people get it wrong? To satisfy this criterion, you must make a two-part showing:
The artist has commanded (in the past) a high salary or other substantial remuneration for services in relation to others, OR
The artist will command (in the future) a high salary or other substantial remuneration for service in relation to others.
Pro Tips
In my humble opinion, this is one of the strongest and most straight-forward criterion for O-1B classification because it is wholly independent. If an artist is able to meet this criterion, I always include evidence of it as part of the O-1B filing.
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, there are several forms of evidence that can be submitted, including but not limited to: executed contracts, tax filings and forms (such as the W-2, PAYG (Australia) or T2 (Canada), paystubs, invoices and proof of payment such as cancelled checks or wire transfers into a bank account owned and controlled by the artist.
Third, it is important to keep in mind that many artists do not work the standard 8 hour day/40 hours per week because their work is project-based. In scenarios where artists do work long hours a day, such as on a film set, such work is limited to a couple of weeks or months out of a year. So, when evaluating high remuneration or salary, it is essential to determine whether the artist is paid per hour, receives a daily rate (which may still not be equivalent to an 8 hour day), or is paid per performance or performance. In such cases, it may still be useful to assess the artist’s salary or remuneration on an hourly basis if the artist can provide documentation of the hours they worked.
Fourth, whether an artist is earning a high salary or other remuneration requires a comparison by geography and their peers. I have found that a very useful tool is the wage data provided by the DOL’s Foreign Labor Certification Data Center. In order to satisfy the high salary or other remuneration, the hourly or annual salary must exceed the Level 4 wage for the occupational classification most closely related to the artist’s field of endeavor in the geographic location where all services have been performed or will be performed.
Fifth, 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.