Extraordinary Ability in the Arts

In this guide, I’ve tried to outline the requirements that need to be satisfied in order to qualify as a person of Extraordinary Ability. If you discover after having read this guide that you may fit this definition, get ready for the red carpet treatment courtesy of US immigration.

Introduction
There are a group of people that US immigration feel are so talented in their field that they can be considered “Extraordinary”, and as such can qualify for one of two privileges not offered to anyone else. The first is the O-1 visa, which provides for temporary stays in the US, and the EB1 visa, which is a direct-to-green card route that provides permanent residency within months of application.

When considering this qualification you must put all inhibitions of modesty aside and consider yourself in the most favorable light possible in relation to your peers. With this classification modest will literally get you no where. In contrast, boasting about every last professional achievement could be enough to tip the scales in your favor for this visa. Welcome to America.

Extraordinary vs. Exceptional / Talented:
It’s very easy to think that the words ‘extraordinary’ and ‘exceptional’ are easily interchangeable. However, for US immigration purposes, each of these words has distinct meanings.

Exceptional Ability:
In essence this refers to people who have advanced skills, persons who have advanced degrees such as a Masters degree, law degree, and/or a doctorate. These people are deemed to have acquired exceptional abilities. Persons of exceptional ability qualify for the lesser EB-2 visa which is discussed in another guide.

Extraordinary Ability:
The legal term ‘extraordinary ability’ seeks to identify those persons who have reached the very top of their professions as compared to their peers.

Extraordinary ability in the arts could be someone who has had several hit records, or is highly regarded in their artistic field as someone who is at the top of their profession due to critical acclaim.

A person of extraordinary ability in the arts would be someone that is highly regarded by their peers as being amongst the very best. In addition to reaching the top of their profession, in most cases but not all the success has to be sustained to some degree.

There are many obvious ways a person can claim extraordinary ability status, for example, winning, or placing as runner up in any kind of national awards in that field. Oscar, Tony, BAFTA, Ivor Novello, Whitbread, Booker, Turner, SAG are just a few of the many nationally known awards one can claim extraordinary ability status even if they are just nominated. Just to be nominated / short listed demonstrates that the alien is widely considered amongst the very best in that field.

The above having been said, there are many artistic fields of endeavor where there may be no industry awards, such as casting, voiceover acting or technical work. For example, a good friend of mine called Chris works in the film business within the sound editing field. Chris is not an actual sound editor but works with the sound editor in a technical way only he could really explain. Nevertheless, Chris was regarded by all he worked with as being top-notch in his field, such that he got to work on many blockbuster films. Chris had no national or international acclaim for his work, except his peers who knew the quality and importance of his work and were able to support his claim for ‘Extraordinary Ability’ status. He won his case and got his O-1 and subsequently his EB1 green card. There are many similar stories where the lesser-known but nevertheless highly gifted, managed to be recognized by US immigration as having an ‘Extraordinary Ability’.

Should You Apply for the O-1, EB1 or Both:
If you are coming to work on a show for a limited period and that show is the full extent of your reason for coming to the US, then the temporary O-1 visa would be sufficient. You would certainly need a sponsor – the company employing you for the show to actually sponsor you, claiming on your behalf your status as being someone of Extraordinary Ability.

If you are looking to seek work in your field of extraordinary ability then you will need to sponsor yourself.

In both cases your attorney will need to catalogue your cumulative extraordinary achievements in order to make a convincing case that you are indeed worthy of such an honor. In this endeavor, unless you have actually won a major award no stone must be left unturned, no reference must be left unsolicited, no achievement must be left unmentioned in order to build your case. After all, what is the point of almost getting your visa application approved? Being deemed by US Immigration as having O-1 / EB1 status is very subjective, so every effort must be made to make an overwhelming case, leaving no room whatsoever for doubt in the mind of the official deciding your case.

The Ideal O-1 / Green Card Candidate
According to the INA Section quoted at the start of this review, the ideal O-1 candidate is a person who has received sustained national or international acclaim for their extraordinary ability in the arts or motion picture industry in any country.

0-1/Green Card For Arts / Music Entertainers: Non-immigrants in the arts must show a high level of achievement as demonstrated by the degree of skill, and have received recognition substantially above that ordinarily encountered, and be recognized as prominent, i.e. renowned, leading or well known.

O-1/Green Card For Motion Picture and Television: Non-immigrants in television and motion picture industries must show that they have attained a very high level of accomplishment evidenced by a degree of skill and recognition significantly above that ordinarily encountered and are recognized as outstanding, notable, or leading. (8 C.F.R. Section 214.2(O)(3)(ii)

Checklist:
For Aliens of Extraordinary Ability in Arts
In many cases, it is advantageous to supply as much information going back as many years that can be submitted. Here volume really does count.

1. C.V. / Résumé charting rise to top of artistic endeavor
2. Copies of Top 3 accolades
3. Featured articles in national trade, or popular magazine, etc.
4. Copy of publishing deal with major label
5. Copy of royalty statements showing major earnings
6. Copy of contracts for performances showing major earnings
7. Copy of contracts for any commissioned work for national or international audience
8. Copy of any peer recognition for outstanding achievements
9. Copy of any hit records or sold out shows, nationally or internationally
10. Copy of membership to elite union for senior / outstanding performers
11. Endorsements by other commercial entities based on notoriety / success in artistic field
12. Agent contracts to perform at prestigious engagements

These are just some of the documentation you could submit, although if you have an accolade not mentioned in this checklist, then submit them anyway as accolades will vary from profession to profession.

Other Essential Facts You Need To Know About O-1 Visas:

You Need A Sponsor:
All O-1 applications start with a sponsor petitioning you for your visa. This means that some company or agent based in the US will need to file an application on your behalf to qualify as a suitable candidate for O-1 status.

Where the employer is the petitioner then all that is required is the application being made on your behalf stating the complete package on offer, such as remuneration, length of service etc. This information together with all the documentation attesting to your O-1 qualifications will be submitted for consideration.

For those artistic applicants who are traditionally self-employed but contracted for specific periods, such as in a publishing contract, touring contract, or performance season, the artist’s US agent can act as the petitioner showing copies of the contracts and dates etc of the work to be done. So for example, if an artist is entering the US as part of a nation-wide tour, then the agent will submit the itinerary of that tour and the contract surrounding it. If the artist is coming to record an album or work with other artists, then the artist’s record contract / publishing deal would need to be submitted as part of the application package.

How Long Can The O-1 Last For?
The O-1 generally lasts for the duration of the US engagement. However, typically, it is initially issued for three years and can be extended indefinitely at annual intervals forever, as long as the visa holder continues to remain occupied in the field creating the O-1 status.

Can the O-1 Be Upgraded To Green Card Status?
In most cases the O-1 visa holder can apply for EB1- priority worker status, which is a green card based on extraordinary ability at any time.

Dual Intent:
Dual intent is the legal concept of having intent to enter the US in order to live permanently and having the intent to live in the US for the duration of the visa. This was discussed above in the section called Non-Immigrant vs. Immigrant Visas above. For O-1 purposes the alien may only have the intent to remain for the duration of their visa and must show that they have some home ties. However, the showing of home ties does not need to extend to the alien keeping a home residence. This is because the O-1 visa can be granted initially for three years and forcing a person to maintain two residencies for such a long time has been deemed too burdensome.

Rights of Spouse and Children of O-1 Visa Holders
The spouse and children of O-1 holders will be given O-3 status. This can be quite a limiting status because the spouse and the children will not be granted work permits to work in their own right. Therefore, in order for the spouse and children to obtain employment they must qualify for a work visa in their own right, which can be difficult. This having been said, because they will be able to remain in the US for as long as the principal remains in O-1 status they can look for employment opportunities and apply for an appropriate visa. Your immigration attorney will need to consider the case of each family member to see if they have sufficient qualifications themselves to qualify for a work visa.

A general rule of thumb should be that unless the family member has a bachelor’s degree or is a bona fide skilled worker they may have to consider attending college until such time as the O-1 achieves green card status or the individual family member acquires sufficient education or skills to strike out on their own.

Conclusion:
The O-1 / EB1 Green Card is an excellent visa to aim for because it offers so much future potential for all those who qualify.

By following the various check lists above you will be able to assist your attorney immensely in this application.

I hope you have found this overview informative and helpful. However, if you have any further questions whatsoever, please do not hesitate to contact me personally.
Chris M. Ingram, LL.M., ESQ
Attorney At Law