You're the Top! (O-1 Visas for Cellophane)
Visas for individuals of extraordinary ability
Whether you are achieving greatness in the arts, business, sciences, or sport, the need for your services in the US may depend upon determining just how good you are.
For many, if a company or US-based organization is willing to sponsor you, or you are engaged in a business that is investing in the US, you can obtain an appropriate visa to apply your trade for a suitable period of time. See Working or Investing. For others who may have limited engagements or a need for greater flexibility commensurate with their expertise, an O-1 or P-1 visa may be more appropriate, but they are not for everyone.
Extraordinary Ability or Achievement
- “Extraordinary ability”, as applied to the O-1 classification, is defined in section 101(a)(46) of the Immigration and Nationality Act and further explained in 8 CFR 214.2(o)(3)(ii) . The term refers to individuals with:
– “Sustained national or international acclaim” in their chosen field, including the sciences, arts (performing, visual, culinary, etc.), education, athletics, or business; or
– “Extraordinary achievement” in reference to persons in the motion picture and television industry (including both performers and others).
Artists and Entertainers (Except for Those Affiliated with Motion Picture or Television Productions)--a matter of distinction
- For purposes of the arts, "extraordinary ability" means "distinction," which has been defined as a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts."
- Field of arts? The term "arts" is defined as including "any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts." Historically, this has been broadly interpreted to include essential technical or creative personnel such as set designers, choreographers, and voice coaches, as well as performers themselves.
- What about performance groups? The term "group" is defined as two or more persons. This "group" relates only to performing P-1 aliens. It does not include individuals who assist in the presentation who are not on the stage (e.g., lighting or sound technicians). These support aliens would need to be petitioned for as essential support P-1s and a separate petition must be filed for them.
- The 75% Rule: If a solo artist or entertainer traditionally performs on stage with the same group of aliens, e. g., back-up singers or musicians, the act may be classified as group. This group would then need to meet the “75% rule”, and if it does not meet that rule, the artist or entertainer would need to qualify as an O-1 (rather than P-1) and the back-up band as O-2s. The “75% rule” means that 75% of the members of the group must have been performing services for such group (and under the same name as shown on the petition) for a minimum of one year or more. See 8 CFR 214.2(p)(4)(i)(B) .
The O-2: Accompanying Aliens . One or more persons who are essential to the performance of an O-1 performer or athlete may be classified as O-2 accompanying aliens. The O-2 alien must be coming solely to assist in the O-1's performance. The O-2 must be an integral part of the actual performance or events and possess critical skills and experience with the O-1 that are not of a general nature and which cannot be performed by others, i. e. which could not be performed by U. S. workers. If the O-2 alien is accompanying an O-1 alien in the television or motion picture industry, he/she must have skills and experience with the O-1 which are not of a general nature and skills which are critical, due to a pre-existing or long-standing working relationship with the O-1. If he/she is accompanying the O-1 for a specific production only, it must be because significant production (pre and post) will take place both inside and outside the U.S. and the continuing participation of this O-2 is essential to the successful completion of the production. The O-2 classification may not be granted for aliens to support other than O-1 performers and athletes. A businessman or scientist, for example, may not have O-2 accompanying aliens. See 8 CFR 214.2(o)(4) . The O-2s may not work separate or apart from the O-1 they support and may change employers only in conjunction with a change of employers by the principal O-1. A separate petition is required for such support personnel.
A P-1, P-2 or P-3 may also have accompanying essential support personnel. A separate petition is required for such support personnel. See 8 CFR 214.2(p)(4)(iv) .
There are several key definitions contained in the statute or regulations which are peculiar to the O and P nonimmigrant classes. A complete listing can be found at 8 CFR 214.2(o)(3)(ii) and 8 CFR 214.2(p)(3) .
Like most US immigration petitions, O and P visa determination are made based on supporting documentation.
- National and international awards
- Published material about you
- Published material by you
- Evidence of role with distinguished organizations
- Evidence of high salary commensurate with your prestige
- Peer Group consultation. The group of practitioners of an occupation, including a collective bargaining representative, if any. This term may be used to describe an individual or several individuals engaged in the occupation; it may also be an organized group which is recognized as a labor organization, a professional or management organization. A peer group which is a labor organization is generally required for a consultation, although in some fields, there may not be an organized, identifiable peer group. See 8 CFR214.2(o)(3)(ii)
You're the Top by Cole Porter, sung by Ella Fitzgerald
At words poetic I'm so pathetic
That I always have found it best
Instead of getting 'em off my chest,
To let 'em rest - unexpressed.
I hate parading my serenading,
As I'll probably miss a bar,
But if this ditty is not so pretty,
At least it'll tell you how great you are.
You're the top! you're the Collosseum,
You're the top! you're the Louvre Museum,
You're the melody from a symphony by Strauss,
You're a Bendel bonnet,
A Shakespeare Sonnet,
You're Mickey Mouse!
You're the Nile! You're the Tow'r of Pisa,
You're the smile, on the Mona Lisa!
I'm a worthless check, a total wreck, a flop!
But if baby I'm the bottom,
You're the top!
You're the top, you're Mahatma Gandhi,
You're the top! you're Napoleon brandy,
You're the purple light, of a summer night in Spain,
You're the National Gallery, you're Garbo's salary,
You're sublime, you're a turkey dinner,
You're the time, of the Derby Winner,
I'm a toy balloon that's fated soon to pop;
But if baby I'm by the bottom you're the top!
You're the top, you're a Waldorf salad
You're the top, you're a Berlin ballad
You're the nimble tread of the feet of Fred Astaire
You're an O'Neal drama, you're Whistler's mama, you're camembert
You're a rose, you're inferno's Dante
You're the nose, on the great Durante
I'm a lazy lout who's just about to stop
But if baby I'm the bottom,
You're the top!
Steven D. Heller
US Immigration Lawyer in the UK
Heller Immigration Law Ltd
Lewes, East Sussex
+44 (0)1273 434609