Navigating Difficult Waters: Immigration Laws As They Relate to Foreign Artists, Entertainers, and Athletes

By: LAURA J. DANIELSON

September 2001

In the past twenty years, our arts and sports world has exploded far beyond our borders. American artists and athletes routinely perform in countries throughout the world, and their counterparts here. It is typical in any major U.S. city to have a choice of entertainment as diverse as  taking in an Indonesian gamelan concert, a Finnish folk festival, or a Chinese acrobatic display. Foreign sports such as soccer and cricket have grown in popularity and many of our world-class athletes, from professional basketball players to U.S. Olympic coaches, are foreign. 

Despite all of this cultural exchange, obtaining permission for artists and athletes to enter the U.S. is not as easy as one might think. First-time event planners often naively plunge ahead, planning every detail except the most important one: how is the featured artist going to get into the country? As we'll see, not everyone is qualified.  And, among those who are, timing is everything. Most visas require that applications be approved in the U.S. at one of four regional immigration processing service centers before the visa may be applied for abroad at the U.S. consulate in the individual's home country. In addition, many types of visas require pre-approval by the applicable union or the U.S. Department of Labor. While the Immigration and Naturalization Service ("INS") sometimes accommodates requests for expedited handling and processes applications in a matter of days, such treatment isn't guaranteed unless the petitioner is willing to pay a premium processing fee of $1,000.

In nearly all situations individuals cannot come to the U.S. to work in any capacity without special advance work permission. This includes artists coming to the U.S. for performances that last less than one week. Although most individuals from first-world countries can come to the U.S. as visitors without first applying for a visa, they will be turned away at our borders if there is suspicion that they will do anything for pay. To an INS official, payment means any remuneration at all, including non-cash contributions. 

Most performers and athletes, therefore, must obtain visas in advance of arrival. The type of visa depends on the applicant's circumstances and qualifications, as explained below.

Visas for Artists and Entertainers of "Extraordinary Ability or Achievement"

O visas and P visas are the primary types of visas used for artists and athletes. With regard to artists, the main difference between the two is that O visas are meant for individuals who may be in the U.S. for extended periods, whereas P visas are generally for group artists here for shorter durations.

O Visas:  Individuals of "extraordinary ability in the sciences, arts, education, business, or athletics" are eligible for O-1 visas. Certain support individuals accompanying O-1 artists or athletes are eligible for O-2 visas and dependents (spouses and children under age 21) for O-3 visas. "Extraordinary" is defined differently in the regulations depending on the type of applicant, with a lower standard of "distinction" for artists and entertainers. Athletes are subject to a higher standard of extraordinary ability. Visas will be granted only to those athletes who have reached a level of expertise "indicating that the person is one of the small percentage who have risen to the very top of the field of endeavor."

Artists and entertainers must have reached a level of achievement "evidenced by a degree of skill and recognition substantially above that ordinarily encountered" and must be "renowned, leading, or well known in the field." Additionally, those in the television and motion picture industries must demonstrate a "record of extraordinary achievement." To be qualified for O-1 status, artists and entertainers must submit evidence to the INS Regional Certifying Center that they have won a major international award (eg. Academy, Emmy, Grammy, or a Director's Guild Award) or have done at least three of the following:

1. starred in major productions;

2. received national or international recognition through critical reviews;

3. worked prominently with distinguished organizations;

4. produced a record of major commercial or critical acclaim;

5. been recognized by organizations, government agencies, or experts in the field; and

6. commanded a high salary in relation to others in the field. 

Artists in the motion picture or television industry, including directors and other essential technical and creative personnel, must have a demonstrated record of skill and recognition "significantly above that ordinarily encountered to the extent that [they are] recognized as outstanding, notable, or leading" in the field. This somewhat higher standard than that applied to artists in other industries is rooted in politics and concerns of related labor unions about foreign competition.

Speaking of unions, prior to their visa application, foreign artists and entertainers must first obtain written advisory opinions from the appropriate union stating whether the union agrees that these artists are qualified for visas. If no relevant union exists, a letter from an expert in the field may suffice. Technically, the INS may approve an application without a favorable union opinion, however, it is far easier to obtain an approval with one.

O-1 visas can be good for up to three years and indefinite one-year extensions may be granted. O-1 petitions must be filed by U.S. employers or agents. Artists who plan to remain in the U.S. for any significant duration should write their applications as broadly as possible to maximize their employment opportunities. For example, a dancer may be hired by a dance company to perform during the main dance season. The options of teaching and being subcontracted to other dance companies off season should also be included in the job description. Such artists cannot, however, work outside their fields of endeavor as many U.S. artists do to make ends meet.

P Visas: Exclusively for artists, entertainers, and athletes, P visas are divided into three classifications (P-1, P-2, and P-3) that do NOT parallel O visas. P-1 visas are for entertainers coming to the U.S. as part of a group internationally recognized as outstanding for a substantial period of time. Each member must  have been with the group for at least a year (with certain exceptions) and must be entering the U.S. exclusively to perform with that group. The standard of evidence for group recognition is nearly identical to that for an individual obtaining an O-1. The group must have either received a major international award or have done at least three of the following:

1. starred in major productions;

2. received international recognition for outstanding achievement;

3. worked prominently with distinguished organizations;

4. produced a record of major commercial or critical acclaim;

5. been recognized by organizations, government agencies, or experts in the field; and

6. commanded a high salary in relation to others in the field. 

It should be noted that individuals may join an existing foreign group in the U.S. in P-1 status, but cannot obtain P-1 status to join a U.S.-based group.

P-2 visas are granted to artists and entertainers who perform individually or with a group pursuant to a reciprocal exchange program between U.S. and foreign organizations. Although there are no other criteria pertaining to these organizations, relevant labor unions must be involved in establishing or concurring with the programs, and exchanges must be similar in terms of caliber of artists and terms and conditions of employment.  Despite their potential, only a handful of P-2 programs have been established thus far by unions such as Actors Equity (with its British counterpart) and the American Federation of Musicians (with its Canadian counterpart).

P-3 visas are granted to "culturally unique" individual or group artists coming to the U.S. to express their art form. Cultural uniqueness is broadly defined as a style of artistic expression unique to a particular "country, nation, society, class, ethnicity, religion, tribe or other group of persons." Required evidence includes testimonials from recognized experts and published materials attesting to the authenticity of skill and history of the culturally unique art form.

All P visa categories allow for "essential support personnel." Union advisory opinions are required for principal artists as well as for support personnel.  In other words, the union applicable to the support person (eg, the International Brotherhood of Electrical Workers) must be consulted in addition to the artistic union applicable to the artist. P visas are granted for the period of time needed to complete the event or performance, not to exceed one year. One-year extensions are available indefinitely.

Special Rules for Athletes

O-1 athletes must meet the higher standard of "extraordinary ability" applied to non-artists, requiring receipt of a major international award or proof of at least three of the following:

1. internationally or nationally recognized awards;

2. membership in associations that require outstanding achievement;

3. published material about the athlete in major trade publications;

4. participation as a judge of others in the same field;

5. contributions to the field of major significance; 

6. authorship of articles in the field;

7. employment in an essential capacity in distinguished organizations; and

8. high salary relative to others in the field. 

A contract with a professional sports team is not by itself sufficient evidence to obtain O-1 status. 

Because the standard for O-1 visas is higher than for P-1 visas, most athletes apply for P visas. P-1 athletes may apply as individuals. As evidence of performing at "an internationally recognized level," they must submit a tendered contract with a major U.S. sports league or team, or a tendered contract with an individual sport "commensurate with international recognition in that sport." They also must prove at least two of the following: 

1. significant participation in a prior U.S. major league season;

2. participation in international competition with a national team;

3. significant participation in a prior U.S. college/university season in intercollegiate competition;

4. provide a written statement from a major U.S. sports league or official of the sport's governing body of the individual's international recognition;

5. provide a written statement from the sports media or recognized expert regarding international recognition;

6. high international ranking; and

7. significant honors/awards in the sport. 

P-1 visas for individual athletes may be valid for up to five years, with one extension allowed (for a total stay not to exceed ten years).

One final exception for athletes: those who enter the U.S. for the purpose of participating in international tournaments or competitions and who receive prize money but no salary may enter as tourists.

Other Visa Options for Athletes, Artists and Entertainers

Not all artists and athletes will have the record of achievement necessary for O or P status. If these individuals have a college degree related to their field of endeavor and are coming to be employed in positions classified as "professional" (meaning that a college degree is the typical requirement for entrance into that field), they may be eligible for a visa type called an H-1B. An H-1B is the most common visa for employed individuals in the U.S., and applies to artists and entertainers who fit the immigration definition of "professional." Key to obtaining H-1B approval is the job's requirement of a university degree or its equivalent. Some coaching positions, for example, qualify for H-1B status while others do not. This category requires an employer, however, and the employer must be paying the prevailing wage for the profession (and obtain a certification to this effect from the Department of Labor). H-1B status is granted for three years at a time for a maximum of six years.

Student visas represent another option for younger athletes and artists (F-1 for college level and M-1 for vocational schools). Although students may work in only a limited capacity, most receive a period of practical training allowing them to work in their field for a limited period upon graduation (one year for F-1 students). Many young artists get their start in the U.S. by entering as students, obtaining practical training, and then switching to an H-1B or an O-1.

Obtaining a Visa

Simply because the INS Regional Certifying Center has classified an individual as an O or P artist or athlete or H-1B professional does not mean this person has the right to enter the U.S. The U.S. State Department must first approve a visa application which is normally made at the U.S. consulate in the individual's home country. Armed with the INS' approval notice, the artist or athlete will fill out a simple application form and, depending on what country he or she is from, attend a personal interview.  

Consular officials can deny visa applications for any number of reasons, including concern that the applicants don't intend to return home after time spent in the U.S. have lied in underlying O or P or H submissions, don't have money to support themselves in the U.S. or have a criminal record or poor U.S. immigration history. Appealing visa denials is extremely difficult, particularly in countries with high fraud profiles. Due to the possibility of visa denials, all factors surrounding an individual's situation should be carefully considered prior to preparing and making submissions to INS. 

Permanent Options

Most artists or athletes in the U.S. for any significant period of time generally want to obtain permanent resident status (holding "green cards"), as it is frustrating and expensive to live with nonimmigrant status on any of the various visas discussed above.  Green cards, however, aren't easy to come by. There are three viable avenues available to most artists and athletes seeking permanent residence:

1. Prove they are of extraordinary ability;

2. Have an employer establish that there are no U.S. workers available to do the same work; or

3. Marry a U.S. citizen. 

Artists or athletes of extraordinary ability may self-petition for permanent residence provided they can prove they intend to continue to work in the U.S. in their field. Establishing extraordinary ability for the purpose of obtaining permanent residence requires that these individuals are of "that small percentage who have risen to the very top of the field of endeavor." The evidentiary standard for this category is virtually identical to that of an O-1 visa for an athlete. The submission to INS must carefully document and emphasize the individual's achievements in his or her field. Narrowly defining the field of endeavor increases probability that an individual has risen to the top. Artists or athletes often spend years in O-1 status while putting together a portfolio to use in their permanent applications.

For many individuals, the employment-based option of obtaining permanent residence is limited to whether employers are able to sponsor them for permanent residence by establishing that there are no qualified U.S. workers available and willing to fill their jobs. The employer must advertise availability of a full time, permanent  position, offer prevailing wages, and prove to the satisfaction of the Department of Labor that no qualified U.S. workers have come forward in the recruitment process who meet the minimum qualifications for the position. A successful application results in a "labor certification" from the Department of Labor, which can then be used to pursue permanent residence.

As a general rule, the more education and experience required for a position, the more likely a labor certification application will be successful. There are special handling provisions for labor certifications for university professors enabling them to qualify more easily (allowing employers to choose the best qualified candidate rather than the minimally qualified one) and for professional athletes allowing them to switch easily between teams.

Just as individuals seeking temporary visas may be denied entry to the U.S. due to their permanent intent, individuals with permanent status may be denied entry for having temporary intent. In other words, those with green cards must maintain strong and permanent ties to the U.S. or they may lose their status. Artists and athletes are often at greater risk than the average person because their careers take them around the globe. Great care should be taken to ensure they never stay out of the U.S. for more than a year at a time, consistently file and pay U.S. taxes, and can document permanent ties in the U.S. through bank accounts, property, family relationships, etc. Those planning to depart the U.S. for significant periods of time (over six months) should consider applying for a re-entry permit, establishing to the INS that they have permanent intent to remain in the U.S. for up to a two-year period even if that time is spent abroad.

Conviction of certain crimes render individuals deportable, thus losing permanent residence. Current laws related to immigrants and crime are extremely strict. Any drug related crime, for example, including possession of a small amount of marijuana, is a deportable offense. 

Because of the insecurity of permanent resident status, it is always advisable that foreign artists and athletes consider obtaining U.S. citizenship. Those who have maintained permanent residence for five years, at least half of which has been spent physically present in the U.S., are eligible for naturalization. Many people do not realize they are eligible for dual citizenship. Unless their own countries require that they relinquish their native citizenship (and most don't), they may keep it and still acquire U.S. citizenship.  Not only does citizenship grant them the right to vote; it affords them the same rights as natural born citizens. Only as American citizens can they truly stop worrying about navigating their way through myriad immigration rules and regulations.