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June 3, 2019 | EmploymentFrom the blog

What is the O-1 Visa Extraordinary Ability Visa, and What Contracts Are Needed To Secure It?

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Author: Leah Norod, Co-Author: Steve Maggi

The O-1 visa is a non-immigrant, or temporary work visa, which can last for up to three years at a time and has no limit on the number of extensions. Extraordinary ability visas encompass all professions, including business, science, education, athletics, and the arts.

Since ability is a subjective standard, the law requires that it be demonstrated through different forms of recognition, including press coverage, national or international awards, scholarly articles written by the individual, expert letters, critical role in organizations and distinguished performances or accomplishments, to name a few. There are no limits in terms of O-1 visas processed per year.

I. O-1a versus o-1b

O-1a is for any profession not contained under the scope of the arts. O-1b is for any artistic profession and this can be defined quite broadly and includes models for example. Both categories require that the individual clearly establish at least three qualifying categories – O-1a has eight categories to choose from and O-1b has six. O-1b does not include awards or participation on panels or as a judge of peers’ work, whereas o-1a does. O-1a does not include expert letters, whereas o-1b does. Knowing this helps the attorney to decide which category to apply under, as some professions can be argued under either one.

II. Key to O-1 success: media coverage

The principal piece of proof that clearly establishes extraordinary ability is the existence of media coverage in the form of published articles about the individual, in trade journals and/or major media.

Trade journals can be small in circulation but must be specific to the industry/profession that the individual works in, so for example a luthier who restores ancient violins could be featured in the American violinists’ society’s quarterly journal.

Major media refers principally to publications, preferably national or international in scope, with specific readership/circulation numbers presented. This may also include television or radio pieces about the individual on national or international networks.

The principal focus is on the individual and the recognition they have received, and the secondary focus is on the organizations they have worked for and the reputation those organizations have. This may not apply to some professions, like scientific researchers or academics, as the focus shifts to their own publications and the number of citations of their work from their peers.

III: Another key to success: critical role in an organization with distinguished reputation

Anyone who has been employed or had a long-standing role with an organization or company should submit under this category, as it is one of the few that is encompassed in O-1a, O-1b.

The standard being implemented by USCIS is that the impact must be felt across the organization, not just in one division or department of the organization. Letters from the organizations must detail the role that the individual had, how they interacted with co-workers, duties and responsibilities they had, and the impact of their work on specific projects, the reputation of the company and its profitability or growth.

Artists often have the hardest time establishing this category, as they may not have formally worked for an organization, so we encourage to join boards of directors for artistic organizations in order to add this category  

IV. O-1 employer versus agent sponsor distinction

O-1 allows visa holders to work for an employer directly or independently through an agent sponsor. Employer-sponsors are exclusive visa sponsors and the individual cannot work for other employers. This means that if employment ends so does the individual’s visa status. Agent sponsors are individuals who serve as representatives/third parties for work contracts.

Petitions based on agent sponsorship require an itinerary which connects all the future work project contracts for the individual, in order to show full-time employment projected for the cumulative period, up to three years. This option is much more flexible and also allows the individual to pick up additional work as long as the agent sponsor co-signs all future contracts as their visa agent sponsor.

In order to justify the maximum three-year period allowed, sound contracts are required which are highly detailed, specifying the scope of work to be performed, dates, number of hours per week and salary or hourly/periodic pay wage.

However, even if the Artist qualifies for the O-1 visa by fulfilling the bare minimum three categories , the US government isn’t necessarily concerned with the strength of any given agreement.  

The parties should always remember that they are making a contractual commitment to perform certain obligations just like any other business or entertainment transaction, and that doesn’t stop at the minimum requirement for O-1 visa qualification.  If the artist is being engaged for one specific media project,  like a part in a television show or a film, the artist should make sure the agreement specifies the nature of the role and important dates, as well as any perks the artist is receiving, credit, and how and when the artist earns their fee.  The producer will want strong work-for-hire language, the ability to control the production or to extend it if necessary, and certain obligations on the individual like doing a set amount of publicity. Most importantly, the employer will want the engagement to be contingent on the success of the O-1 Visa application, which translates to authorization for the artist to work in the United States.   

Distinctive from a one-off employer situation, an agent sponsor scenario will require a longer runway of engagements.  If you’re an agent sponsor, you’ll want to have an agreement that details the terms on which you’ll sponsor the artist, most specifically what they must give you in return, for example:

  • Are you taking a commission?
  • Do they need to pay you back for the visa at some point, or is the artist so big that you’ll pay this cost in order to land them as a client?
  • Are you responsible for maintaining the artist’s three-year schedule of employment engagements? 
  • Do you keep receiving commissions on these engagements after the three-year term is complete?

These are all questions an agent sponsor should ask itself and discuss with the artist with an aim towards solidifying the relationship in writing.  If you’re an artist, you’ll want to see some assurances that the agent will be signing your future employment agreements.  You might also want to kill two birds with one stone and engage someone experienced in your industry, or if you have representation back home you’ll need to speak with them to carve out the US market.  

If you have any questions regarding agent contracts or entertainment law, in general, please contact us at info@romanolaw.com. If you have any immigration-related questions, please contact Steve Maggi at smaggi@smalawyers.com

Photo by Nik MacMillan on Unsplash

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