Summer, Baseball and H-1B Visa Filings in Full Swing

As summer and baseball season are now in full swing, so is the H-1B filing season. The U.S. Citizenship and Immigration Services (USCIS) completed its initial round of selections on April 1, prompting immigration practitioners and employers to get filings across the home plate by June 30. However, many potential employees are stuck in the dugout, so to speak, unable to get in the game, as they were not selected in the H-1B lottery.

The H-1B visa category provides temporary work authorization to individuals employed in a role involving a specialty occupation. Most commonly known for its restrictive numerical limitations, the H-1B visa category caps the number of new visas issued each year at 65,000, with an additional 20,000 available to graduates of U.S. master’s degree programs. While 85,000 H-1B visa holders would exceed more than twice the occupancy of the Atlanta Braves’ Truist Park, it has become increasingly difficult to obtain an H-1B visa under the current lottery system due to a high volume of submissions, the increased likelihood of fraud, and the number of submissions designed to beat the system.

While the H-1B remains a first choice among U.S. employers for the temporary employment of foreign nationals, many wonder whether it continues to be a game worth playing. Such thoughts have prompted employers to turn to other non-immigrant visa lineups, such as the H-1B1, E-3, TN, and O-1:

H-1B1, Specialty Occupation Workers from Chile or Singapore

The H-1B1 visa is a subcategory of the H-1B category, providing work authorization options to specialty occupation workers from Chile and Singapore. Current laws limit the annual number of qualifying foreign workers eligible to obtain an H-1B1 visa to 6,800, allocating 1,400 for nationals of Chile and 5,400 for those of Singapore.

The greatest advantage of this subclassification is the ability to forego the H-1B visa lottery. Further, the H-1B1 visa does not have a six-year limit. The period of employment is one year, with subsequent extensions available in one-year increments.

E-3, Specialty Occupation Workers From Australia

Applying only to nationals of Australia, the E-3 nonimmigrant visa classification provides another option for specialty occupation workers. Similar to the H-1B1, participation in the annual H-1B lottery is not a prerequisite to admission in E-3 status.

TN, Temporary Workers From Mexico and Canada

Yet another alternative to the H-1B visa is the TN visa, designated for select professionals who are citizens of Canada and Mexico. The U.S. Mexico-Canada Agreement, formerly the North American Free Trade Agreement (NAFTA), provides special economic and trade relationships for the U.S., Canada and Mexico. This classification permits qualified Canadian and Mexican citizens to work temporarily in the U.S. at a professional level. Professions on the list include accountants, engineers, lawyers, pharmacists, scientists and teachers.

Employers focused on expediency surely are interested in this nonimmigrant visa category. Not only does the TN visa forego the H-1B lottery, but it also can circumvent the Labor Condition Application requirement, which is a Department of Labor process requiring approximately seven days.

O-1, Individuals of Extraordinary Ability

The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and received recognition nationally or internationally for such achievements. Those eligible for O-1A classification are individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry).

The O-1B visa category is intended for individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry.

Of particular importance, one of the top benefits of an O-1 visa in comparison to an H-1B is the lack of annual limits on the number of O-1 visas issued. Moreover, as numerical caps and a lottery process do not restrict the O-1 visa, the application period is not limited to a specific filing window. Further, unlike some nonimmigrant visa categories, O-1 filings are not restricted by an annual filing period, and the overall cost of the O-1 process can be significantly less.

The O-1 visa category also boasts employer flexibility as the beneficiary does not have to be directly employed by the entity for which they will work, but could work for a U.S. agent. The O-1 also provides significant relief with respect to the potential length of the visa, as this nonimmigrant visa classification offers unlimited one-year extensions of the initial three-year period.

As many potential H-1B employees have not received the call-up, these other nonimmigrant visa categories present viable alternatives.

Tieranny L. Cutler, independent contract attorney, co-authored this article.

USCIS Issues New Policy Guidance for O-1B Visas

United States Citizenship and Immigration Services (“USCIS”) recently issued policy guidance to clarify how to determine the appropriate visa classification for persons of extraordinary ability in the arts. Given the massive changes in the entertainment industry in the past year, including the increasing popularity of internet and streaming services, this guidance provides essential insight for those seeking to understand the nuances of O-1B nonimmigrant visas and determine which visa applies to their unique circumstances.

O-1 Visa Program for Individuals with Extraordinary Ability or Achievement

The O-1 nonimmigrant visa program provides nonimmigrant visas for individuals who possess extraordinary ability in the sciences, arts, education, business, or athletics, or who have demonstrated extraordinary achievement in the motion picture or television industry and been recognized nationally or internationally for those achievements.

The O-1 nonimmigrant visa program is broken down into the following classifications:

  • O-1A: Individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry);
  • O-1B (Arts): Individuals with an extraordinary ability in the arts;
  • O-1B (MPTV): Individuals with extraordinary achievement in the motion picture or television industry.

Generally, to qualify for an O-1 visa, a beneficiary must demonstrate “sustained national or international acclaim” in their respective field. To prove this, applicants must provide evidence of their credentials, including national or international awards or prizes, membership in professional organizations in their respective field, published articles in notable trade publications, high salary for their services, as well as other relevant evidence of exceptional expertise.

Under the O-1B category, as noted above, individuals in the entertainment industry can demonstrate either extraordinary ability in the arts or extraordinary achievement in the motion picture and television industry. With the recent shifts in the entertainment industry, including the prevalence of household names from YouTube, TikTok, Instagram, etc., it has become increasingly common for applicants to possess qualities that fall under both the O-1B (Arts) and the O-1B (MPTV) categories.

Determining the Relevant Standard for Artists with Some Connection to MPTV

The USCIS Policy Manual acknowledges the difficulties associated with petitions that have elements of both O-1B (Arts) and O-1B (MPTV) classifications. According to the newly issued guidance, inclusion in the motion picture or television industry is not limited to whether artistic content will air on television or movie screens, noting that “USCIS considers streaming movies, web series, commercials, and other programs with formats that correspond to more traditional motion picture and television productions to generally fall within the MPTV industry’s purview.” Indeed, USCIS gives weight to whether an individual”s work aligns with industry organizations such as the Academy of Television Arts and Sciences.

However, under USCIS guidance, not all television stars are considered equal for the purpose of visa qualification. For instance, reality television poses an interesting problem because many of the “stars” are non-actors involved in a competition of some sort that takes place on television. According to USCIS, contestants on reality television programs fall outside of the MPTV industry, but judges, hosts, and those employed by the production company generally fall within industry parameters.

Video blogging, a staple of the increasingly popular YouTube and TikTok platforms, poses similar questions. However, USCIS makes clear that static web content, like video blogs, generally falls outside the O-1B (MPTV) classification and is more appropriate for O-1B (Arts) petitions. USCIS notes that if an artist’s work or appearance on an MPTV production is incidental to their non-MPTV work as an artist, the MPTV classification may not be appropriate.

Guidance for O-1B Visas

The newly-issued guidance provides some clarification of the nuances that distinguish O-1B (Arts) beneficiaries from O-1B (MPTV) beneficiaries. Potential beneficiaries and practitioners can continue to consult the USCIS Policy Manual for up-to-date guidance in this quickly changing industry.

Article By Raymond G. Lahoud of Norris McLaughlin P.A.

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