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Aliens of Extraordinary Achievement in Film and Television

 
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Updated: July 22, 2014

Nonimmigrant visas are available to persons in motion picture or television production if they have ‘a demonstrated record of extraordinary achievement,’ and those achievements have been recognized in the field through ‘extensive documentation.’ For a thumbnail sketch of the nonimmigrant visa, known as the O-1, click here.

The O-1 is also available, subject to slightly different requirements, to persons of extraordinary ability in the sciences, arts, education, business or athletics. For an article discussing the O-1 in those five fields, please click here to go to our article on the subject.

The O-1 visa for persons of extraordinary achievement in film and television has many attractive features for qualified applicants. The O-1 has no annual quota and therefore qualified applicants need not fear that they could be closed out of the US market due to a shortfall of available visas. The O-1 can be granted initially for up to three years and can be renewed indefinitely as long as the applicant continues to qualify and to maintain O-1 status. Another advantage is that there is no need for O-1 applicants to show that they maintain a residence outside the US to which they will return after their stays in the US.

Requirements

The United States Citizenship and Immigration Services (‘USCIS’) is entrusted with determining which applicants may enter the United States on the basis that they are aliens of extraordinary achievement in the fields of motion picture or television production. To see the USCIS regulations on this subject click here. Extraordinary achievement with respect to motion picture and television productions, is defined as ‘a very high level of accomplishment in the motion picture or television industry evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent that the person is recognized as outstanding, notable, or leading in the motion picture or television field.’

As can be seen in the regulations, one can meet the extraordinary achievement threshold in one of two ways—the short cut or the regular route. One qualifies for the short cut if one has been nominated for, or been the recipient of, ‘significant national or international awards or prizes in the particular field such as an Academy Award, an Emmy, a Grammy, or a Director’s Guild Award.’ According to the regulations, a person with such awards, or nominations for them, should qualify for an O-1 without further proof of achievement.

For those without such an award or nomination, additional documentation is needed. One must produce evidence to convince the USCIS of at least three of the following six criteria:

  1. The alien has performed and will perform services as a lead or starring participant in productions or events with a distinguished reputation. This should be proved by such materials as critical reviews, advertisements, publicity releases, contracts or endorsements.
  2. The alien has achieved national or international recognition for achievements, as shown by critical reviews or other materials published in major newspapers or other publications.
  3. The alien has performed and will perform in a lead, starring or critical role for organization and establishments that themselves have a distinguished reputation. The regulations would have this proved through articles in the press, or by testimonials.
  4. The alien has a record of major commercial or critically-acclaimed successes, proved by such evidence as ratings or box office receipts, and other occupational achievements reported in the press.
  5. The alien has received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the alien’s field.
  6. The alien 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.

The ‘extraordinary achievement’ version of the O-1 visa does not allow the alien (as is the case for an alien of extraordinary ability) to argue that the regulatory criteria do not readily apply to his field and therefore to submit comparable evidence he claims to be probative. In order to qualify for the O-1 in the field of motion pictures and television, an applicant without a significant national or international award or nomination for same must convince the USCIS that he meets at least three of the above six criteria.

In addition to meeting the required criteria, the alien in film or television must supply written consultations from two parties; one from the union representing the alien’s occupational peers, and one from a management organization in the area of the alien’s ability. These consultations are often called ‘no objection letters,’ in that an organization that does not object to the approval of the petition need not provide a statement of facts supporting its decision but may simply submit a letter of no objection.

The O-1, if approved, may last for a period of time necessary to complete the events set out in the petition, up to 3 years. Extensions may be granted in one-year intervals.

Filing the Petition

Once the necessary proof has been assembled, the petitioner files with the USCIS (either with the Vermont Service Center or California Service Center) an I-129 Petition for Nonimmigrant Worker and supporting materials. The petition must be filed by either an employer or an agent; an alien may not sponsor himself for O-1 status. The filing fee is $325.00.

If expedited consideration of the petition is desired, one may choose to take part in the ‘Premium Processing Service’ scheme offered by the USCIS. In exchange for an additional fee of $1225.00 the USCIS guarantees that within 15 calendar days of receiving the petition it will respond with either an approval notice, a request for additional evidence, a notice of intent to deny, or the opening of an investigation for fraud or misrepresentation. If the USCIS does not meet the 15-day deadline the $1225.00 is refunded.

Applying for the Visa

Once the USCIS approves the petition an approval notice is sent to the petitioner and/or petitioner’s representative. The beneficiary and any accompanying eligible family members may then apply to the appropriate US Embassy or Consulate for issuance of the corresponding visas.  Most visa applicants between the ages of 14 and 79 must prepare visa application forms, submit them online, pay the visa application fee, appear at the Embassy, have a brief interview with a consular officer and give finger scans (inkless digital finger prints) of all 10 digits.   Some applicants for O visas may be excused from a personal appearance at the Embassy, under the Visa Reissuance programme.  To see whether you are eligible for the programme, go to the Embassy's Visa Reissuance Wizard.

Here in London if at the interview the consular officer approves the application, the applicant’s passport is taken for visa issuance purposes and for routine applications returned via the Embassy’s courier service DX Secure in approximately three to five working days. This three- to five-working day period is the only time in the petition and application process during which an applicant is without his or her passport. In urgent and unusual cases same day visa issuance and passport return may be possible.

Families and Other Supporters

Supporting persons may qualify to accompany the O-1 in his work in the US. An O-2 visa is available to a person coming to the United States to assist in the O-1 alien’s performance, if the supporting person has skills and experience with the O-1 alien which are not of a general nature and which are critical, either based on a pre-existing and longstanding working relationship or, if in connection with a specific production, because significant production (including pre- and post-production) will take place both inside and outside the United States and the continuing participation of the alien is essential to the successful completion of the production. Qualifying family members (spouse and unmarried children under the age of 21), if otherwise eligible, may apply for O-3 visas to accompany the alien for the period of his stay in the US.

Conclusion

Anecdotal evidence suggests that the USCIS is raising the standard by which ‘extraordinary achievement’ is evaluated. However, our recent experience indicates that these nonimmigrant visas are eminently achievable for persons who truly are above the norm, as long as the necessary petition and supporting documents are prepared carefully and creatively.

We hope that this short article has been of interest and assistance, but it cannot possibly cover all permutations of the law and should not be relied upon as a substitute for legal advice tailored to the specifics of your situation. If you believe that legal advice would be helpful you should consult a qualified US immigration attorney.

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