The Movie Business and US Immigration

Introduction:

The movie business today is very much a global enterprise. All over the world directors, screen writers, actors and technicians come together to form an ensemble of professionals to make the magic of the movies.

If part or all of the production is taking place in the US, an immigration lawyer is needed to make sure the talent coming from outside the US has the appropriate visa.

In the post 9/11 age, US immigration officials are still ramping up their screening procedures. Racial profiling and ID screening are just a few of the measures the United States Citizenship and Immigration Services (USCIS) are using with increasing frequency to keep unwanted aliens from entering the US. Unfortunately, many innocent aliens get caught in this very same net, which can lead to a significant loss of cash and production time if members of the talent crew are prevented from entering the US. It is not uncommon for even a celebrity to be denied entry into the US for one reason or another, especially if they have had a controversial past in their home country.

You can be sure that in the aftermath of 9/11, USCIS was able to track down every immigration officer who had reviewed the visa applications submitted by the terrorists, every immigration officer at the embassies where the visas may have been issued, every officer who let the terrorists enter the country, the Immigration Center for Enforcement (ICE) officer who should have tracked them down when their visas expired, and finally the ticket agent who allowed them on to the plane. All of these officers are known internally to USCIS and collectively they have become the salutary ‘poster child’ for what went wrong.  When one thinks about it, no USCIS immigration officer would want any future catastrophe to traced back to them. Given these internal pressures, it is not surprising that gaining entry into the US for legal and legitimate purposes must be regarded as privilege and not a right.

Many people will argue that they have been able to travel freely in and out of the US many times without any problems, so why should they be concerned now?  The answer is, unless one is a citizen of the United States, the Customs Border Patrol officer (CBP) has no overriding obligation to allow the alien entry. Thus, even a green card holder, a.k.a. a Lawful Permanent Resident (LPR), is by definition a guest in the United States and their permission to remain in the US can be terminated under certain conditions. Aliens who have not even attained green card status are under far more scrutiny that ever.

Immigration lawyers face a growing obligation to create and build alliances with corporations in the movie business so that the people responsible for hiring talent can bring foreign workers in to the US in a timely fashion.  There are so many administrative protocols to be navigated that the more advance notice the lawyer has in such matters, the more consistent they can be when it comes to making sure that all the right visas are issued in time for production.

The Immigration Ranking System:

“Talent” in the entertainment industry typically refers to people who appear / perform in front of the camera. Everyone else is expected to be a professional in their respective discipline.

US immigration ranks these skills from the top down, creating visa opportunities for a range of skills.  The most highly sought-after professionals are given the easiest and fastest method of processing, whilst the least skilled would barely be allowed into the US – the waiting time could be so long that applying for a visa would be pointless.

Aliens of Extraordinary Ability:

Although the term ‘extraordinary ability’ has a literal meaning everyone can understand, it also has a special legal meaning when used in the context of immigration law.  A person of extraordinary ability is one who is so talented in comparison to their peers that they are widely regarded as being amongst the very best in their field.

A further interesting feature is that this accolade could be considered for almost any occupation in the field of business, science, education, sports and the arts – it is difficult to imagine what lawful professions might be excluded. The first thing to appreciate is that anyone in the movie business could be considered as being extraordinary.

Talent vs. Technicians as Aliens of Extraordinary Ability:

As outlined above, the talent are people who perform in front of the camera. Not all talent can be considered extraordinary solely because they happen to make it in front of the camera. There are many ranks of acting performances that range from the leading role to a blurred background shot of a crowd scene where Extra 3029 tries to convince his friends that he starred in the latest blockbuster with the leading actor.  The leading actor may have a claim as being an alien of extraordinary ability, but an extra could not.

For an actor to be seriously considered as an alien of extraordinary ability, they would need to demonstrate that they are amongst the best in the business. Actors / performers who have been nominated for a national or industry award would be quickly accepted by USCIS as having extraordinary abilities.

There are many actors who have had significant success but somehow never seem to get nominated for a significant award. In these situations the lawyer will need to take a closer look at the merits of the case and begin to request as much documentation as possible about the actor’s performance history.  The USCIS official will not be a performance arts expert; therefore he or she will need to be persuaded by the strength of the evidence as to whether a case has been made to grant the status sought.

An actor may qualify for extraordinary ability if they have appeared in many TV commercials, or have a special talent not commonly found in the industry but very much in demand commercially. An actor may also be regarded as being extraordinary if they have appeared frequently in major scenes with better known actors, such as in a supporting role.

An actor may qualify for extraordinary ability if enough senior directors, film makers and studios write testimonials on their behalf, saying how fantastic the alien is and how highly that person is regarded in the industry.

Therefore, it is very possible that even a lesser-known actor can qualify as an alien of extraordinary ability if enough people higher up in the industry say the actor deserves the accolade. Ultimately is a matter of making the most convincing case possible and hoping that the USCIS official is persuaded to grant the visa.

With regards to technicians there are many national and industry awards for the best performance of certain skills. For example, film editing, photography, sound effects, score, special effects, costume, animation, cinematography and so forth. Even though many skills are recognized at the highest level – for example the Academy Awards – there are many technical skills that are not recognized in the same way. For example, in animation there might be 150 employees working for years on one full-length movie and awards are not given to any of them individually. The same is true for the voice of the animated characters – there are no major awards for best voice in an animated movie.  The point is that among these many unsung heroes, there may be people of extraordinary ability without whom these award-winning movies could not be made.

USCIS will consider an application from anyone who can provide evidence to demonstrate their extraordinary ability.  USCIS will look at the particular skill in relationship to others in the same field of skill and consider whether the applicant does indeed qualify.

If anyone feels that they have an extraordinary gift in the field of business, education, science, sports and the arts and has received national or international recognition, even if just within the cloisters of their particular national organization, then it’s certainly worth having these claims examined by a qualified immigration lawyer.

For the movie business, anyone who can be classified as having an extraordinary ability is given the red carpet treatment when it comes to relocating to live and work in the US. This classification is extremely important when the talent and the technicians need to be brought into the US very quickly to work.

The O1-Visa and the EB1 Green Card Aliens of Extraordinary Ability:

The O-1 visa is designed for aliens of extraordinary ability who intend to come to US to work on a project but not necessarily to live in the US permanently. This visa application, once filed, can be decided in as little as 15 days (barring requests by USCIS for further evidence). The O-1 can be granted for an initial period of 3 years and thereafter in annual extensions for an indefinite amount of time, or just for the duration of the principal project.  The speed with which this visa can be issued makes it an invaluable asset for companies to quickly bring in the skills they need from abroad.

A drawback for the O-1 is that an individual cannot apply for it themselves – instead, O-1 applicants must be sponsored by a US sponsoring company such as a film studio, agency or the company paying for the alien’s services. This restriction is also frustrating because many people will not know for sure as to whether they can be classified as being an alien of extraordinary ability until they have a sponsor who can apply for them.  In other words, there is no USCIS facility to determine even a provisional extraordinary status. Also, because this classification of extraordinary ability is highly subjective, it would be impossible to get a uniform opinion as to an alien’s potential for a positive classification unless the case was abundantly clear, such as evidence of multiple prestigious award nominations or wins being available.

An additional benefit to the O-1 visa is that the spouses of O-1 applicants can apply a work permit. However, this benefit does not extend to the children of the O-1 holder who are old enough to work.

Unlike nearly every other visa, including the green card, O-1 visas are not subject to an annual quota. Many visas are subject to an annual quota and as such even if the person is well qualified for their visa and has a job waiting, if the quota for the fiscal year has been exhausted, that alien is out of luck and will have to wait until the start of the next fiscal year before applying. In many cases, the applicant cannot file anyway and then get in line; they have to wait until the quota re-opens and then join the stampede and hope for the best.  With the red carpet treatment given to the O-1 visa these aliens never have to be concerned about the availability of getting an O-1 visa when one is needed.

The EB1 Green Card Based on Extraordinary Ability:

The preeminent qualification for both the O-1 and EB1 green card is to be classified as a person of extraordinary ability by USCIS. Therefore, if the alien has an O-1 visa, qualifying for the EB1 visa should be a matter of making sure the paperwork is in order for the most part. There are some exceptions, and these will be covered below.

Each fiscal year the quota for EB1-based green cards is 40,000, and it is not uncommon for the quota to be exhausted.  The quota issue presents two main problems. Firstly, if speed of issue is important, the O-1 should be applied for first so the alien can get on with the project at hand while the application for the green card is being processed. Secondly, if the quota has been exhausted then the paperwork can be held pending until the quota becomes current again.

Before a green card can be granted, USCIS will conduct a thorough investigation into the alien’s background. For example, before a green card can be approved the alien must undergo a medical examination that checks for the existence of any contagious diseases. Also, a complete criminal background check is carried out. Whilst the medical background check tends to not present any serious problems for the alien, a criminal background check can often become problematic if the alien has any conviction whatsoever, parking tickets not withstanding.

Under the banner of Crimes of Moral Turpitude, an alien can become inadmissible to enter the US.  Crimes of Moral Turpitude are crimes that contain a degree of malice and intentional ill-will. The scope of these crimes is too large to cover in this guide, but include crimes that result in the harming of others. Drug-related crimes would also result in inadmissibility.  It does not matter how long ago these crimes were committed or whether any time in jail was actually spent – an alien, even one of extraordinary ability, could fall at this hurdle.

In reality many aliens may have served some jail time in their youth. Having a criminal record does not mean that a green card will not be granted – in the most serious cases a green card will never be granted and if a criminal record is discovered by USCIS, even the non-immigrant visa an alien is working on in the US may be revoked. If the criminal conviction is very minor and ancient, a green card can be obtained providing there is substantial evidence of rehabilitation submitted with the application. The green card will of course take longer to process since the issue of admissibility will have to be reviewed separately.

Even if a green card is granted, aliens should know that any criminal tendencies must clearly be a thing of the past – if an alien is convicted of a Crime of Moral Turpitude (for example, drinking under the influence), the green card can be revoked and the alien could be deported. However, once a green card has been held for at least 5 years (being physically present in the US for a total of 5 years counting all departures out of the US) the alien may apply for citizenship and once granted it’s almost impossible to lose it, even if a serious crime is committed.

The points are rarely outlined so plainly but in this case it’s very important to provide the reader with a balanced picture of immigration. There’s the red carpet treatment as well as the deportation treatment; both are an ever-present reality.

Aliens with Exceptional Ability:

Again, the word ‘exceptional’ is an easy to understand word but within the context of US immigration law the word exceptional has a very specific meaning.  With extraordinary ability being the highest accreditation that can be given to an alien, the next rung on the ladder downward are aliens with exceptional ability. In a nutshell, these aliens are split into two distinct categories. The higher of the two would require at least an advanced degree to enter the profession. An advanced degree might be an MA, LL.M, MBA, JD or any degree where a BA is a requisite to taking the advanced degree. A person may also have the equivalent of an advanced degree if they have a BA plus five years experience – this is the minimum entry requirement for the job nationally.  For example, a medical physician could become one without a PHD, but an attorney could not become one with a law degree, which is an advanced degree (JD).

Aliens with advanced degrees qualify for the EB2 green card while aliens with an Associates Degree or higher (for example a BA degree) may qualify for the EB3 green cards.

The EB1, EB2 and EB3 visas are allocated a quota of 40,000 green cards, thus the harder it is to qualify for each of the categories the longer the availability will last. Thus, in reality, the EB3 green card is typically the first category of visas to be exhausted, followed by the EB2 and then finally the E1.

Before an alien can be granted a green card sponsored by an employer, the employer must first demonstrate that there are no US workers ready, willing and able to do the job. In contrast, the EB1 alien can sponsor themselves and not have to satisfy any test relating to whether or not US citizens are available to do the job. This is yet another perk only granted to the very best and brightest.

In truth, many of the skills exercised in the movie / entertainment business were not taught in the classroom but on the job, so there are many aliens who most likely have a blend of both education and experience. The role of the immigration lawyer will be to interpret the alien’s range of skills using US immigration’s various ranking tables and come up with the best immigration solution – including a time frame as to how fast the application can be realistically processed.

Looking to the Future:

Movie and production companies should ideally work closely with their immigration counsel to look at the skills of the existing and future work pool. An assessment could be made to see which aliens (especially skilled technicians) within the work pool could be prepared for making a green card application. The assessment would also include looking at any short -term project hires to see what it might take to upgrade their immigration status from non – immigrant to green card or from green card to US citizenship. Assisting any employee with improving their immigration status is a tremendous thing that cannot be overstated. When looking at the future work pool requirements the immigration lawyer should be able to develop long term immigration strategies to ensure the continued inflow of international talent and technicians.

Being able to identify which candidates fit precisely into which immigration category can have a bearing on the selection process – after all, what would be the point of selecting a candidate who for one reason or another cannot be relocated to the US?

It is very difficult to predict with any certainty which direction US immigration policy will move in. With the constant threat of terrorism looming it is likely that US immigration policy will make it increasingly more difficult to relocate aliens, even though the industry as a whole needs these workers.  What is certain is that in order for US companies to develop and maintain their competitive advantage in the entertainment industry, it is essential they continue to attract talent and technicians from around the world. This in turn requires the expertise of the best immigration lawyers who are experienced in navigating the US immigration law system for the benefit of the client.

Chris M. Ingram., LL.M., ESQ.