Lin Walker 3/31/24 Lin Walker 3/31/24

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.

Lin Walker 3/24/24 Lin Walker 3/24/24

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

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 5

The criterion at 8 CFR §214.2(o)(3)(iv)(B)(5) requires evidence that the artist “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.”

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:

The artist has received significant recognition for their achievements;
Such recognition must be from organizations, critics, governmental agencies or other recognized experts in the specific field of endeavor; and
The documentary evidence submitted must clearly establish the organization, critic, governmental agency or expert’s authority, expertise, and knowledge of the artist’s achievements.

What exactly does USCIS mean with regard to “significant recognition for achievements”? According to the USCIS Policy Manual, “the evidence must establish the beneficiary has received significant recognition for one or more achievements from an organization, critic, government agency, or other recognized expert in the field. The word significant in this criterion modifies recognition rather than achievements. Accordingly, although the beneficiary must have one or more achievements, the significance of the recognition is based on who is recognizing the achievements.”

Pro Tips

Second, many people think they can or should file an O-1B petition with 10+ testimonial letters and that this will somehow make up for the weakness in the documentary evidence submitted to satisfy other criteria. Nothing could be further from the truth–this is the equivalent of ordering a sandwich and receiving a roll smeared with copious amounts of mayonnaise or ketchup or any other condiment and nothing else. Yes, it’s still edible, but is it an “extraordinary” sandwich?

In my experience, filing an O-1B petition with so many testimonial letters is a red flag to the adjudicating officer. I usually recommend 5-7 testimonials, with at least half being issued by independent experts in the field.

Third, care must be taken to identify the experts. How many years of experience do they have in the field? Have they all worked with, taught, or supervised the artist? Or worse, are they related to the artist (nepotism doesn’t work for O-1B petitions). What are their qualifications showing that they are an expert in the field? How do they know the artist? What can they confirm about the artist’s achievements? These are all essential questions to answer before securing a testimonial letter.

Fourth, 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.

Lin Walker 3/17/24 Lin Walker 3/17/24

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

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 4

The criterion at 8 CFR §214.2(o)(3)(iv)(B)(4) requires evidence that the artist “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 pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications.”

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:

The artist has a record of major commercially acclaimed successes, OR
The artist has a record of critically acclaimed successes, AND
These successes are documented by ratings, box office receipts, sales or revenues generated by the artist, standing or ranking in the field, or other occupational achievements as reported in major media.

First, let’s cover what USCIS does not accept as satisfying this criterion. With very few exceptions, views, likes or comments on social media (LinkedIn, X, Facebook, Threads, and Instagram) do not count.

Second, what does USCIS accept? When looking to satisfy the “record of major critically acclaimed success” component, the evidence is more limited. There must be “public-facing praise or positive reviews in the relevant field, such as from professional art, television or film critics” and such reviews must appear in major media. When looking to satisfy the “record of major commercial successes”, the evidence can be more diverse.

Pro Tips

Second, include relevant evidence to this specific criterion. What does that mean? The evidence may include articles in newspapers, trade journals, publications, or other major media that are about the artist and their work or their accomplishments that have received praise or noteworthy recognition, or show commercial success such as sold out performances or rankings as #1 or in the top 10.

For example, if the artist is a musician, the evidence may include record sales, music recording certifications (platinum, gold, diamond), ranking/rating on popular music charts, sold out performances/tours, and royalty payments.

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.

Lin Walker 3/10/24 Lin Walker 3/10/24

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

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 3

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

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:

The artist has performed (in the past) services in a lead, starring or critical role AND
The artist will perform (in the future) services in a lead, starring or critical role AND
The artist’s performance in a lead, starring or critical role was and will be for organizations and establishments that have a distinguished reputation.

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

Second, many petitions do not establish that the organizations and establishments have a distinguished reputation.

Third, many petitions use the terms “lead”, “starring”, and “critical” interchangeably, when these mean different things. For USCIS, a lead role means a principal role in the organization or establishment, while a starring role means a position of great prominence relative to others in the organization or establishment. Critical role means that the artist has contributed or will contribute in significant or integral ways to the organization or establishment’s goals or activities.

Pro Tips

Second, include relevant evidence to this specific criterion. What does that mean? The evidence may include articles in newspapers, trade journals, publications, or testimonials that confirm the artist’s leading, starring or critical roles.

Note that these testimonial letters should come from the artist’s employers or other people with first-hand knowledge of the significance of the artist’s. In defining the artist’s role USCIS takes into account more than just the artist’s title, and also looks at the artist’s specific duties and contributions to the organization/establishment’s goals or activities.

Lin Walker 3/3/24 Lin Walker 3/3/24

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

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 2

The criterion at 8 CFR §214.2(o)(3)(iv)(B)(2) requires evidence that the foreign national “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.”

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:

There is published materials WRITTEN BY the artist and their achievements OR
There is published materials WRITTEN ABOUT the artist and recognizes their achievements AND
That material is published in major newspapers, trade journals, magazines or other publications.

First, let’s cover what USCIS DOES NOT accept as satisfying this criterion. With very few exceptions, social media posts such as those appearing on LinkedIn, X, Facebook, Threads, and Instagram do not count as major media. Photos in tabloids or links to videos appearing on online do not count

However, if the artist was interviewed for a major broadcast network or related media outlet (which can include major podcasts) and transcripts are provided, such evidence is usually satisfactory.

Second, in addition to providing a printed copy of the article (which must be in English or accompanied by a certified English translation) that shows the name and date of the media, you must include media kit(s) or circulation/readership data to establish that the media qualifies as major media.

Pro Tips

Second, include relevant evidence to this specific criterion. What does that mean? The evidence may include critical review(s) or other published material(s) in a major newspaper(s), trade journal(s), magazine(s), or other publication(s) (which may include online publications or a transcript of radio or video coverage) by or about the artist. The documentation must also include the media kit or readership/circulation data for each source.

Keep in mind that you must curate and thoroughly review all evidence is presented to USCIS about the artist. Care should be taken not to include documentation may be offensive (such as nudity or profanity) or early media articles that referred to the artist years ago as “up and coming”, “a rising star”, “future star” or “one to watch in the future” as USCIS will interpret these documents as showing that the artist is not NOW extraordinary but may become extraordinary in the future. If such documentation is included, USCIS will most likely deny the O-1B petition and tell you to refile in the future, once the artist is already a star.

Lin Walker 2/25/24 Lin Walker 2/25/24

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

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:

The artist has performed (in the past) services as a lead or starring participant AND
The artist will perform (in the future) services as a lead or starring participant AND
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

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.