The O-1B is an employment based nonimmigrant classification for artists who have garnered a high level of distinction in their field. Sometimes informally called the “artist visa”, O-1 classification can actually be applied to a broad range of professions in the form of an O-1A (including business, science, scholarly research, etc.) which require a showing of extraordinary ability; the O-1B classification is for artists and the standard of achievement required is lower than that of an O-1A.
Many talented artists utilize the O-1B visa to work in the United States because there is a certain level of flexibility in it which conforms to the less traditional employment structures that artists work under. A visa like an H-1B only permits the visa holder to work with one employer; for any additional work, a concurrent H-1B has to be filed. Additionally, the salary must meet the prevailing wage and a labor certification must be approved—for the fast paced arts world, there just isn’t enough time to file a new H-1B for each new job.
The O-1 has more flexibility in that the petitioner can be an agent rather than the actual employer where the artist will work. The agent does not need to employ or pay any wages to the artist, but rather acts in a role where at a minimum he or she will accept service-of-process on behalf of the artist, will swear that the information contained within the O-1 petition is accurate, will inform USCIS of any materials changes to the artist’s proposed employment, and agrees to be responsible for the artist’s return ticket if and when O-1 status is terminated. Agents can be thought of as guides who are interested in the development of the artist but who are acting as a petitioner solely for purposes of the O-1B filing.
The flexibility in having an agent petition for an artist is that if the artist arranges additional employment that is in the same field for which he or she was granted O-1 status, the artist may accept that employment without submitting an amended petition to USCIS. For artists who may have various freelance revenues streams that cannot all be anticipated, the O-1B classification through an agent provides a good deal of flexibility to accept various artistic endeavors as they materialize.
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Ian E. Scott, Esq. is the Founder of Scott Legal, P.C. He can be reached at 212-223-2964 or by email at firstname.lastname@example.org.
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