IMMIGRATION OPTIONS FOR ARTISTS AND ENTERTAINERS

Presentation By Bennett R. Savitz Savitz Law Offices, P.C. www.ImmigrationOptions.com

Nonimmigrant Categories
B-1:

Visitors For Business Specialty Occupations: H-1B Extraordinary Ability: O Artists and Athletes: P Canadians and Mexicans: TN Australia, Chile, and Singapore: E-3 and H-1B1

B-1/B-2
Foreign

nationals wishing to enter the United States as visitors must demonstrate that they are entering temporarily for business (B-1), or temporarily for pleasure or medical treatment (B-2).

Allowable Activities in B-1 Status

Engage in commercial transactions that do not involve gainful employment in the United States; Negotiate contracts; Consult with business associates; Litigate; Participate in scientific, educational, professional or business conventions, conferences, or seminars; or Undertake independent research

H-1B: Professionals

Temporary Professional Workers Numerical Limitations Must be a Specialty Occupation Must have a Bachelor s Degree or equivalent Filed with the Service Center in Vermont or California Apply for three-year increments, with a total limit of six years (one major exception!) Labor Condition Application through the Department of Labor

Two-step process:
Labor

Condition Application (LCA) to

the Department of Labor (DOL).

H-1B

Petition to United States

Citizenship and Immigration Services (USCIS).

Step One: The Labor Condition Application

Employer must pay the higher of what it pays its own similarly employed workers or what similarly employed workers in the area are paid. The working conditions of its U.S. workers must not be adversely affected. There must be no strike/lockout at the work site in the occupation for which a worker is sought. Notice must be given to current employees that employer intends to hire an H-1B worker.
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The Labor Condition Application, Continued

The DOL does not approve these attestations; only certifies that they have been properly completed to create a public record of the employer s attestations. A strict set of requirements goes along with the LCA attestations; an employer must not only say it is going to comply with the above, it must follow through or it is violating the law. If an employer does not comply, the DOL has a system in place to enforce and punish:
Available to the public. Formal complaint and investigation mechanisms. The DOL gives itself the power to go after an employer even without a public complaint.

Specialty Occupation

Theoretical and practical application of a body of highly specialized knowledge Bachelor s degree or higher in a field related to the position to be performed Degree requirement common to position or complexity/uniqueness of position justifies degree requirement Employer normally requires degree or equivalent

Step Two: The USCIS Petition

The employer submits a request to USCIS, proving that it has completed the LCA process and demonstrating that both the employer and the candidate qualify for the H-1B category. Employer must prove: The need for someone who is a professional (i.e. the job requires someone with at least a bachelor s degree in a field relating to the work to be performed). The candidate it seeks to hire has the required degree and any other qualifications required.
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Dependents: (Spouses and Children Under 21)

Can obtain H-4 status for same

period principal holds H-1B No work authorization, but can attend school

WARNING!
The

approval of the H-1B Petition does not necessarily qualify the candidate to commence employment. The employer must verify whether the candidate has been granted a change to or an extension of H-1B status, or whether the candidate needs to obtain an H-1B Visa.
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H-1B Portability Law (AC21)

Portability of H-1B Status:

* Someone in H-1B status may change jobs upon the filing of a new petition by a new employer if the individual is in lawful status at the time of filing and has not engaged in any unauthorized employment since his or her last lawful admission.
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CAP ISSUES

65,000 new, non-exempt H-1Bs per year

6,800 reserved for Chile/Singapore

20,000 more for U.S. Advanced Degree holders Non-exempt v. exempt employer
Exempt: Institutions of higher education and affiliated/related non-profit organizations; nonprofit research or government research organization

Exempt v. non-exempt employees

Exempt: Already counted w/in last six years and not left for one year or more

CAP REACHED LATER IN 2011!

For the third time in five years, the 65,000 cap on H-1Bs available during the Fiscal Year (October 1, 2011 to September 30, 2012) was not reached during the April 1st filing window! Since an H-1B application can be filed up to six months prior to the intended start date (April 1st for an October 1st start date), that was precisely the situation in Fiscal Years 2008 and 2009 This Fiscal Year, the total cap was exhausted on November 22nd.

THE CAP WILL BE BACK!

The number of H-1B visas available in fiscal year 2004 (Oct. 1, 2003 to Sept. 30, 2004) dropped to 65,000, a decrease of about two-thirds from the 195,000 available previously Since then, H-1B numbers for FY 2005 ran out on Oct. 1, 2004, the first day of the fiscal year, and H-1B numbers for FY 2006 ran out on Aug. 10, 2005, almost two months before the fiscal year began Even more dramatically, H-1B numbers for FY 2007 ran out on May 26, 2006, less than two months after filing began, and H-1B numbers for FY 2008 and FY 2009 ran out on the first day of filing! Barring Congressional action, the cap will remain at 65K (+ 20K US adv. deg.)

H-1B Visa Reform Act of 2004

Exempts from the H-1B cap the first 20,000 beneficiaries who have earned a Master s or higher degree from a U.S. institution of higher education. After those 20,000 slots are filled, USCIS is required to count those cases against the 65,000 cap for the remainder of the fiscal year.
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H-1B Visa Reform Act of 2004

Implements two additional filing fees:

ACWIA Fee: Petitioners who employ more than 25 full-time employees must pay a fee of $1,500; petitioners who employ 25 or fewer full-time employees may submit a reduced fee of $750. Certain types of petitions are exempt from the new $1,500 or $750 fee. Fraud Prevention and Detection Fee: All petitioners seeking a beneficiary s initial grant of H-1B or L nonimmigrant classification, or those petitioners seeking to change a beneficiary s employer within those classifications must pay a fee of $500. Other than petitions to amend or extend status filed by an existing H-1B or L employer, there are no exemptions from the $500 fee.
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O: Outstanding
Defined as having extraordinary ability in sciences, arts, education, business or athletics Evidence of sustained national or international acclaim Requires extensive documentation File with Vermont Service Center Apply for period of employment, up to three-year limit

O: Outstanding in the Arts

To

qualify as a foreign national of extraordinary ability in the arts, the federal regulations require evidence proving that the foreign national is recognized as being prominent in the field of endeavor as demonstrated in at least three of the following categories:

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O: Outstanding in the Arts

1. Evidence that the foreign national has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications contracts, or endorsements. 2. Evidence that the foreign national has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials.

O: Outstanding in the Arts

3. Evidence that the foreign national has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications. 4. Evidence that the foreign national has a record of major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion picture or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications.

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O: Outstanding in the Arts

5. Evidence that the foreign national 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, as evidenced by contracts or other reliable evidence. 6. Evidence that the foreign national has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the foreign national is engaged. Such testimonials must be in a form that clearly indicates the author's authority, expertise, and knowledge of the foreign national's achievements.

P-1: Athletes and Entertainers

P-1: Athletes or Entertainment Groups (up to 5 years)

be internationally recognized be at least 2 people seek to enter temporarily and solely for the purpose of competition, event or performance

Group must:

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P-2: Reciprocal Exchange

P-2: Reciprocal Exchange (one-year increments)

Individual must be performing under reciprocal exchange program Exchange must be between U.S. organization and foreign organization Provision must be for temporary exchange Exchange must be between similar caliber performers employed under similar conditions

P-3: Culturally Unique Programs

P-3: Culturally Unique Programs (1-year increments)

Artist or entertainer must have achieved excellence in developing, interpreting, representing, coaching or teaching a unique or traditional ethnic, folk, cultural, musical, theatrical or artistic performance Artist or entertainer must be coming to U.S. to promote and facilitate art form

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TN (NAFTA)

Created by NAFTA for Canadians or Mexicans engaged in activities at professional level requires Bachelor s or licenciatura degree for most occupations Must be one of 65 listed occupations in the NAFTA Treaty Self-employment prohibited Includes some positions that would not qualify for H-1B Apply for three-year increments, with no limit

TNs for Mexicans vs. Canadians

Mexicans: Must have U.S. employer LCA no longer required Apply at U.S. Consulate No longer numerical limitations

Canadians: U.S. or foreign employer LCA not required

Can apply at border No numerical limitations

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Benefits of the TN

Benefits of TN over H-1B

no numerical limitations TN still available after H-1B cap is reached ability to extend stay beyond 6-year H-1B limit no limits on number of years may hold TN status TN may be possible for certain cases where an H-1B wouldn t work

Dependents: (Spouses and Children Under 21)

Can obtain TD status for same

period principal holds TN No work authorization, but can attend school

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E-3 and H-1B1

Created by various Free Trade Agreements for citizens of Australia (E-3), and Chile and Singapore (H-1B1) engaged in activities at a professional level All require Bachelor s degree or equivalent Requirements and procedures are a hybrid of the TN, H-1B, and E categories Spouses of E-3 (Australia) can obtain work authorization

GREEN CARD CATEGORIES

First Preference: EB-1 Priority Workers Second Preference: EB-2 Workers with Advanced Degrees or Exceptional Ability Third Preference: EB-3 Professionals, Skilled Workers and Other Workers Fourth Preference: EB-4 Religious Workers Fifth Preference: EB-5 Alien Entrepreneurs

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FIRST PREFERENCE EB-1 PRIORITY WORKERS

*No employer required; beneficiary can self-petition* **No Labor Certification required**
Extraordinary

Ability* Outstanding Professors or Researchers** Multinational Executives and Managers**

Extraordinary Ability
Small

percentage at top of field (sciences, arts, education, business or athletics) No labor certification (or job offer) required, but must continue to work in area of expertise Must document 3 out of 10 criteria listed in regulations (or comparable evidence)

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LABOR CERTIFICATION
EB-2

(Second Preference)

Members of Professions Holding Advanced Degrees or Equivalent

EB-3

(Third Preference)

Professional Workers, Skilled Workers, and Other Workers

LABOR CERTIFICATION PREPARATION UNDER PERM

Job Title and Duties Requirements

Education Experience Skills

Prevailing Wage Recruitment Plan Attestations and Supporting Documentation

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LABOR CERTIFICATION PROCESS UNDER PERM

Obtain Prevailing Wage Determination Conduct and Complete Recruitment Prepare ETA Form 9089 File with DOL DOL Audit? DOL Certifies Application Prepare and file I-140 with USCIS Adjust Status or Consular Process

RECRUITING REQUIREMENTS
Internal Job Posting Newspaper Any In-House Media Recruitment Menu:

Television / Radio Professional / Trade Journal Internet (Employer and/or External) Job/College Fair College Placement Office Head Hunter Employer Referral Program

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PROCEDURE AFTER LABOR CERTIFICATION

I-140

(Immigrant Petition) or Consular Processing

Prove all elements based on category Ability to extend H-1B beyond six year limit

I-485

Advantages of Adjusting Status in U.S. Permanent Portability

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