Each year around March, hundreds of U.S. employers submit registrations for foreign nationals in the H-1B lottery conducted by the U.S. Citizenship and Immigration Services (USCIS). Many of these foreign nationals seek to work in developing segments of the U.S. economy such as information technology or engineering. Due to the ever-increasing number of entries submitted by employers and the inadequate number of H-1B visas available through the lottery to meet demand, thousands of foreign nationals are not selected and scramble for alternate options to continue living and working in the United States. Sometimes, spouses and children may also depend on securing an appropriate dependent status to remain in the United States as well. One alternative that many skip over is the O-1B nonimmigrant visa for individuals of extraordinary ability in the arts, which may be the best option for foreign nationals working in creative fields.
Though the arts, when compared to other sectors of the economy is expanding at a much slower pace, it is still experiencing job growth. The definition of what is considered an “art” may be limited to straightforward disciplines like the performing arts or fine arts for many, but the continued expansion of modern technologies and capabilities pushes the boundaries of what many may see as art with the mixing of art with elements of science, technology, engineering, and math in certain fields. Moreover, the beauty of the O-1B nonimmigrant visa is that it can be used for many creative activities that may not intuitively be considered “art” and the immigration regulations also do not limit what counts. This flexibility is an excellent opportunity for employers, foreign nationals, and attorneys to exercise their creative minds for a practical solution to missing out on selection in the H-1B lottery.
There are numerous advantages for employers to explore an O-1B nonimmigrant visa if there is a creative element in the field of the foreign national. While the number of H-1B visas available in the lottery is limited and there is a set time each year when employers can register foreign nationals for a chance of selection, there are presently no limitations on the amount of O-1B visas available per year and an O-1B petition can be filed at any time in the year. The O-1B also does not have a maximum period of stay for foreign nationals, compared to the six-year maximum allowed for individuals maintaining H-1B status. This is particularly advantageous for employers engaged in artistic ventures that may span over several years based on available funding, approvals at each stage of the project, and potential modifications throughout the project to meet the envisioned design. An additional advantage is that there is no degree requirement for the O-1B, whereas an H-1B requires a demonstration that the offered position is a specialty occupation requiring at least a bachelor’s degree.
On the other hand, not all foreign nationals engaging in creative activities will qualify for an O-1B. The O-1B is for extraordinary ability in the arts, and as such, demands an extensive showing of distinction in the foreign national’s field and satisfaction of at least three regulatory criteria. While awards like the National Medal of Arts from the U.S. government, an Emmy, or a Grammy, are unquestionably beneficial to establish extraordinary ability in the arts, they are not the only relevant indications of accomplishment. The foreign national can satisfy the regulatory criteria such as by demonstrating their artistic work has resulted in commercial success, they have been selected for lead roles for distinguished organizations, or their work has received recognition by others in journals or other publications. Nonetheless, all is not lost if there are struggles to satisfy the regulatory criteria as a greater level of creativity is available with the use of comparable evidence.
With the constant change of technology brings new methods that foreign nationals can showcase their artistic abilities and receive recognition. For example, the rise of social media and the ability for creatives to have their work liked by, shared by, or viewed by audiences worldwide may present an avenue to satisfy the regulations using comparable evidence, instead of attempting to satisfy the regulations as listed – which were established in 1990 before the rise of social media platforms. The most significant part of using comparable evidence is explaining how individuals in the artistic field are assessed as being extraordinary and distinguished and how those standards mirror the regulations in some capacity.
When exploring alternative options to the H-1B lottery, employers should consider the O-1B nonimmigrant visa for foreign nationals in creative fields, even if it seems less than straightforward to be considered an art. Foreign nationals securing an O-1B nonimmigrant visa also have the opportunity to remain with their spouse and children in the United States who can receive an O-3 dependent visa. There are creative solutions available to present a compelling case to USCIS, while also benefiting the arts sector in the region and the United States as a whole.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Reprinted with permission from the February 8, 2023 edition of The Legal Intelligencer© 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.
