Immigration attorney Rebecca Lenetsky covers everything that artists and gallerists need to know about artist visas to the US.
My name is Rebecca Lenetsky. I’m a New York-based immigration lawyer who works with creatives in the fine arts, film, music, journalism, digital arts, and other related fields.
If your intent is to grow your art practice, or creative profession by spending time in the US, I can be a key player with regard to your work visa, green card, or even citizenship.
This presentation will focus mainly on the O-1B Visa. An O-1B visa is necessary for many visits to the United States that are related to your artistic practice. This is also the visa you need in order to work in the US as an artist. Before turning to the details of the O-1B visa I’ll talk a little bit about the current immigration law situation in the United States.Immigration law is currently changing more rapidly than almost any point in recent history. Many would say that immigration questions and especially restrictions are central to the current government’s policy. These changes have also affected those coming to the US on work visas such as the O-1B. Immigration law is based on two things. It is first and foremost the formal rules, also known as laws and regulations, which tell immigration and border officials what you to do in order to be legally in the US. Secondly, it is the discretionary power of immigration officers. This includes officers at US consulates abroad, and of CBP officers at the physical border when you enter the country. Generally speaking, In order to safely travel to and stay in the US you must: (1) first fit into a visa category that is within the regulations, and (2) apply and be approved by the immigration agency in the US. (3) You must then present yourself at the consulate for a visa stamp. When you arrive at the the border, you need to have the right documents and profile for Customs and Border Protection to be comfortable with allowing you to enter the country. As an immigration lawyer, I bring value to my clients because I know exactly what the current regulations are and how they are changing. In the current climate, it’s very important to work with someone who has firsthand experience with how to present the facts so that they work smoothly with the official requirements. An important part of my role is also to dialogue with you regarding the requirements that are imposed at the consulate or the physical border. This is critical because any irregularities or inconsistencies in the information you provide to the Department of Homeland Security or with Customs and Border Protection can lead to being refused entry or even being barred from entry for very long periods of time. In summary, in order to successfully navigate immigration law, you need an up to date and thorough working knowledge of the rules. It also requires understanding how exactly these regulations can be satisfied at different points of the visa process. The good news is that with the right support and perseverance even the most daunting bureaucracy can be handled effectively and predictably. Visas A visa stamp is a document, usually issued by the consulate in your home country, that permits you to enter the US. The US requires citizens of most countries to secure a visa before entering. However, a visa is not a guarantee that you will actually be allowed to enter once you arrive. CBP border officers are now looking even more closely at the reason for a trip, any prior visits to the US, and even sometimes at the underlying qualifications for a visa. When we talk about visas, it will sometimes also refer to a type of legal short-term status in the US – for example, the O-1B visa category. There are typically two ways of getting permission to be in the US as a creative – either as a temporary visitor, or on a work visa. If you are coming for certain specific purposes – for example for short-term residency programs or speaking engagements – you may be allowed to enter the US as a short-term visitor/tourist. Artists entering as short-term visitors are also allowed to create and work on art, as long as it will not be regularly sold in the US. If you are intending to work or stay for longer periods you must have a special Visa for this. Working in the US without the appropriate visa means that you can be barred from entering the country for many years. Immigration law is very strict when it comes to following the rules. You cannot bend, ignore or avoid these rules without creating the risk of serious consequences that can stick with you for years to come. Let’s first look at what you need to know about visiting the US without the intent of working there. ESTA Visa Waiver and B1/B2 Visa Creatives visiting the US from specific countries can take advantage of the Visa Waiver Program (VWP).This includes most European countries, Australia, Japan, and a few others. The Visa Waiver is applied for through the Electronic System for Travel Authorization (ESTA) and the related Visitors on ESTA can stay for up to three months at a time. Citizens from non-ESTA countries require a B1/B2 visa to travel to the US as short-term visitors. The B1 visa is for business visits while the B2 visa is for pleasure and tourism. Visitors on B1/B2 can usually stay for up to six months at a time. You are not authorized to work in the US on the basis of an ESTA visa waiver or on a B1/B2 visa, but certain activities related to your artistic practice may be covered. You need to apply for the B1/B2 visa in advance of your travel at a US consulate abroad, usually in your home country. It is important to check with an immigration professional before traveling to the US to ensure your ESTA or B1/B2 covers the activities you are planning to engage in. Non-Immigrant Work Visas If you want to work or stay for extended periods of time in the US to develop your artistic practice you will need a temporary, non-immigrant work visa. There is no all-purpose, one-size-fits-all work visa in US law. Different types of work visas have different requirements. For some visa categories, you need to already possess specific work experience or academic degrees in order to qualify. Some visas, like TN Visas for Canadians and Mexicans, are only for citizens of specific countries. Work visa categories are like boxes with different shapes. You need to figure out which box is the right shape for you, and then show the US government that you fit into it. You must get experienced guidance to know what you qualify for and how to navigate the application process. For the rest of this presentation I will focus on the O-1B visas. The O-1B is the most commonly used work visa for artists. O-1B Visas Overview In the following I’ll cover the following: ● What are the O-1B Visa criteria and how do you qualify for an O-1B visa? ● What documentation do you need to provide to USCIS to show that you qualify? ● What if you are not quite ‘extraordinary’ yet? I will discuss how you can think about your current activities and projects to prepare for the O-1 I’ll also cover questions about O-1 procedure: ● What kinds of projects and other work you need to prepare before you apply ● Who is allowed to file the papers with the government ● What are the limitations and steps needed to prepare the application? I’ll also address issues of timing: ● How long does it take to prepare an O-1B before applying? ● How long does it take to get an approval from the government? ● How long can you stay in the US on an O-1B visa? General Notes The O-1B is called the “extraordinary ability” visa. It is meant for artists who have already shown that they have extraordinary ability in their field. The O-1B is meant for artists at all different stages of their careers. Emerging and established artists can both get O-1B visas – it is not just for the very top successful artists in the world. You certainly shouldn’t be discouraged by the term “extraordinary” The key to getting an O-1B as an emerging artist is to present the experience you have in a way that matches the format of the regulations. You also need to present these in a way that meets the expectations of the officer reviewing your documents. Before we go into detail it is important to remember in general: To get an O-1B you in fact do NOT need a full-time job lined up in the US, but you DO need to show you are coming for pre-arranged projects, shows or other work related to your practice. However, unlike other work visas, the O-1B allows you to be flexible and change what work is covered as needed. The O-1B, like most work visas, requires an application (technically called a “petition”) which is submitted to the US Citizenship and Immigration Service, which is located in the US. Once approved, you then apply in a second step for a visa stamp at a consulate abroad. As is the case with most US work visas, you cannot file an O-1 by yourself. You need someone in the US to petition on your behalf. This can be a US company, organization, or individual. The petitioner is a US domestic actor that makes a formal request for you to be granted a non-immigrant work visa. The petitioner is not the same person as a lawyer who is helping to prepare and submit the O-1B. In summary, the O-1B is a: (i) non-immigrant work visa linked to projects or engagements you have lined up in the US (ii) is flexible enough to account for changes to your projects (iii) must be applied for outside the US before you enter AND (iV) a person or an organization in the US must apply on your behalf Now let’s look at the prerequisites for an O-1B visa applicant. O-1B = Distinction in one’s Field The O-1B visa is for individuals with extraordinary ability – specifically, this means that an artist has to reach “distinction in their field.” Distinction means that you have gotten attention and been recognized for your work. “ You do not need to prove that you are the absolute best at what you do. I have a lot of experience with evaluating O-1B candidates, having represented artists at all different points of their careers. Many clients come to me after being told that they are not ready for an O-1, only for us to successfully obtain an O-1B for them. While I don’t want to underestimate how difficult this vias is to get, the O-1B is nevertheless meant for artists who can prove distinction, no matter how far along their practice is. Qualifying for the O-1B To qualify for an O-1B you need to show the following: ● One-Time Award ● Or you need to show that you have met at least (3) three of the six possible O-1 categories One-Time Award: If you received or were nominated for a significant national or international award or prize in your field, you don’t need to show any other proof of your qualifications. This means an award on the level of an Emmy, Oscar, Grammy, or equivalent in another country. Many awards will not qualify for this category. If you don’t meet the one-time award criteria, you have to show that you have met at least three of the six possible following criteria 3 out of 6 Criteria: 1. You have been the Lead or starring participant in productions or events with a distinguished reputation This covers any show, exhibition, event, installation, recording, or any other public presentation of your work. You need to show that your work was an important part of a production. If your work is being displayed in a gallery, it should ideally be a solo show Distinguished reputation means that there is public recognition for the event or venue; for example, were articles written about it, or did it get an award? If your installation is part of a high profile arts event, sometimes even social media feedback can be used to show the reputation of the project. 2. Published materials by or about you and your work in major newspapers, trade journals, magazines, or other publications This category includes any material in newspapers, magazines, journals or blogs that is written by you or about you and your artistic practice. This includes print and online sources. For this category, I ask my clients to put together a list of articles about their work. I also extensively research my clients and find articles that mention them or their work. The strongest articles are ones that discuss the artist’s work in detail. We then choose which are in the most prominent publications – either national media, or outlets that are important in the industry – for example, for visual artists this will be sites like Hyperallergic, Artforum, etc. Articles from foreign countries also qualify – you do not need US or English language articles. 3. You have played a lead, starring, or critical role for organizations and establishments with distinguished reputation Have you have had a prominent position or worked on an important project with a prestigious institution? This category is really extensive, it can include anything from a solo show with a prominent gallery to being employed as full-time curator with a museum. We prove this category by getting letters from relevant institutions explaining what you did and why your role was important. 4. You have a record of major commercial or critically acclaimed successes Here we show that you received critical praise for your work – this includes reviews, awards, or sometimes even measurements like views on social or media platforms Commercial success is proven through sales figures, whether of art, albums, tickets, or other quantifiable metrics 5. Received significant recognition for achievements from organizations, critics, or other recognized experts in the field In my experience, this is one of the easiest categories to prove. This is usually substantiated through reference letters we help put together from experts in your field. This should include a combination of people you have worked with and other who you haven’t worked with directly, but who know about your career and practice It’s very important for these letters to have specific examples of your accomplishments and explain how your work stands out from others 6. You have received a high salary or other substantial remuneration for services in relation to others in the field We prove this by showing that for your country, and for your type of work, your work sold for higher prices compared to others in your geographical location. If you are working as an art professional and have been paid for services such as art advising or curation, we can try to prove that you received a high salary or other compensation, compared to others. 7. Comparable Evidence if you work in a very niche discipline, the above categories may not apply. There may be other types of evidence that will be better suited to proving that you have distinguished yourself. However, I have found for most visual artists, the first 6 categories usually work well. O-1 Visa Petitioners Having discussed how you qualify as an O-1B artist, let us turn to the process of applying. You are not allowed to sign and submit the O-1B forms on your own. A US citizen, company or institution that is representing you as the “Petitioner” must sign and submit the application to USCIS, the agency that reviews and approves almost all work visas. An O-1B petition can be filed by the company or even person who is your direct employer, so that you can perform services for them – for example, creative direction, teaching, art advising, etc. The O-1 visa is unique among US work visas, because you can have one single “Petitioner” even if you are going to be doing work, projects, or shows for several different organizations. This special regulation gives much more flexibility to artists. When your petitioner files paperwork for the O-1B and you work for different projects and organizations your petitioner is called your Agent. This is the arrangement I use most frequently for visual artists. Let us turn to who is permitted to be your O-1B petitioner and/or agent. Who can be an O-1B Agent Any U.S,. citizen, organization, or company can be an agent/petitioner for the O-1B. This can even be a friend or colleague who has no involvement in your work. The O-1 agent/petitioner does not need to represent you in any other way – they dont have to be involved in negotiating, procuring or managing your work. They are only an agent within the framework of the immigration law. You do not have to compensate the agent/petitioner in exchange for this service, so there should be no extra financial burden for this part of the process. I use a very simple written agreement that the artist and the agent/petitioner sign. This agreement limits the obligations between the agent/petitioner and the artist. Any other dealings that the agent/petitioner and the artist have should be controlled by a separate, appropriate contract. Benefits of using Agent There are two major benefits to using an agent filing, as opposed to just having a petitioner. First, this allows you to file one single O-1B application for all of the creative work you will be doing in the US. You don’t need to file a different O-1B for each project or show. Second, you’re allowed to add or change projects, shows, and employers while in the US, without having to file any additional paperwork. This system can save a lot of money, time and stress. You don’t have to pay filing fees for every project. You do not have to convince employers or collaborators to commit to binding agreements, and you don’t have to wait for any paperwork to be processed before starting a new engagement. Itineraries and Employment Agreements Filing the O-1B with an agent gives tremendous flexibility, but you must still plan and document your work before you can file. USCIS wants to see that you will actually be coming to the US to continue your artistic work. You also have to show that you have enough pre-arranged plans to cover the full time you will be here. These plans are however allowed to change, be cancelled or added to once you are approved. As a result, we must submit an Itinerary of planned engagements in the US along with the agent agreement. The itinerary includes projects, shows, performances, promotional events, fairs, lectures, or any other services related to your artistic practice. There must be a contract, deal memo, or letter of intent for each item on the itinerary from a gallery, organization, venue, exhibition space, or from a creative collaborator with whom you will be working. The more prestigious and more high-profile your projects are the better they are for your itinerary. Also, everything in the itinerary must be related to your extraordinary ability, but this can also include related work like teaching or curating a show. An O-1 visa can be valid for up to 3 years. The events on the itinerary should cover the entire length of the period that you want to stay. For example, let’s say you want to move to the US for the full 3 year period. A gallery needs to provide a list with dates of shows, fairs, talks, and any other events that you will participate in. If you are going to be working on a series of commissions, these need to have deliverable dates over the course of the three years, not only within the first year. Preparation & Processing In this section I will look at how long it takes to prepare and process an O-1 visa, what happens when USCIS makes a request for additional information, how much are filing fees, and other general questions. (i) How long does it take to make an O-1B application? The application process will depend at first on you and your petitioner/agent, as you need to assemble all the supporting materials and letters I discussed. Then you have to choose between premium and regular processing by USCIS. Regular processing currently costs $460 USD and has no set processing time. It usually takes about 2-4 months. Premium processing currently costs almost $1500 additional, but has guaranteed maximum 15 day processing. (ii) Requests for Evidence Even with Premium Processing, there is always the possibility of delay if USCIS has questions about whether the material provided is enough to qualify for an O-1B. This is called a “Request for Evidence” or RFE. An RFE is not cause for panic – sometimes an RFE is issued only because documentation has been overlooked or needs some supplementation. USCIS usually gives a 3 month maximum deadline to respond to an RFE. Many RFEs are caused by lack of background information or detail about a production or publication. Sometimes an RFE is issued by an officer who simply has not done a good review of the documents. Part of the most important work that I do is making sure that everything is very clearly presented and backed up with credible information. I also make sure that no key details are missing that would lead to an automatic RFE. After the O-1B is approved, if you are outside the US, you will need to attend a visa interview at a consulate. This interview is usually routine but with the current immigration climate you should be prepared to answer questions about your petition. Some consular officers will decide to challenge whether you are really “extraordinary.” You may also be asked about past visits to the US or previous visa applications. Changing, Extending & Amending For most O-1B visas, you do not need to file a new O-1B when you change work and projects on your itinerary. However, if you filed with a single employer instead of an agent, you will need to submit a new or amended O-1B if anything significant about your employment changes. Significant or material changes include changing from full time to part-time or changing the type of work you will be doing. If you wish to extend your O-1, you must file a new petition before expiry of your current approval. Changing status – Filing in the US vs outside the US: If you are in legal status, you may be able to request to change your status within the US. If you entered on ESTA, you will have to leave and get an O-1B visa. If you change to O-1B status in the US, next time you travel you need to apply for a visa at a consulate before your travel back. Only Canadians are exempt from getting a visa to return to the US Validity Periods You can obtain an O-1 visa for up to three years. USCIS will only issue the O-1 for the length of events, engagements, or performances. When it is time to apply for an extension, you can file up to 6 months in advance of the expiry date. For the extension, you need to show new projects covering the next 3 years. If you are working on the exact same projects, or in the same position, the visa will only be approved for one additional year. New work & shows with the same gallery or organization is usually considered “new work.” So what do you need to start doing now to prepare for your O-1B What do you do if you are an emerging artist, or new to a particular field? How do you show that you are “extraordinary? There is no one specific way to build an O-1B-worthy resume. However, my experience shows that there are some key points to remember. Keep records of all your shows, engagements, performances – including copies of any promotional material and press releases. When it comes to projects and shows, bigger is not always better. USCIS will look at your role in a production or exhibition. A solo show with a smaller organization can be better than a group show with a high end gallery. Get your name in press pieces. Never say no to an article or interview, even with small online publications. If you are in a group show, try to get your work mentioned in press coverage of the show. This will help show that you play a “leading role” Build relationships. This is good for your career and for your immigration status. Keep regularly in touch with professors and mentors – this makes it easier to ask for testimonial letters down the road. Summary Coming to the US is only possible as part of the ESTA visa waiver program or on a Visa. It is very important to plan your trip well in advance and to have the right local partners. If you want to work in the US or stay for longer periods, you need a non-immigrant work visa Do not come to the US with the wrong visa, or fail to adjust your statues if your plans change. The consequences can be very severe. For artists, the most commonly used non-immigrant work visa is the O-1B “extraordinary ability” visa. To qualify for the O-1B, you need to show that you have set yourself apart from others in your field. You show this with documents such as articles about your practice, reference letters, and information about displays of your work The O-1B paperwork must be signed and filed by a person or legal entity in the US that is acting as your O-1B representative or “agent.” You must submit proof of the work you will be doing in the US, but you can add and remove projects once approved. Despite all of the complexity, US immigration law still wants talented creatives to visit and even work in the US. Nevertheless, because immigration law is very rule driven, you must take the time to understand what is required, and to work from the beginning with experienced and specialized legal counsel. Please contact me at firstname.lastname@example.org if you have any questions, and I look forward to helping you realize your professional goals.