Unlike another popular visa classification for skilled and professional workers, namely H-1B, The O-1 Extraordinary Ability classification is not subject to an annual quota limitation. Therefore, it has become increasingly popular with skilled and professional immigrants. This is especially true of the O-1B "artist" category, which requires that, in order to show extraordinary ability, one must have attained "distinction" or be "prominent". Unlike the stricter O-1A category (Business, Science, Education or Athletics) O-1B does not require that a candidate must be at the top of her or his field. He or she only needs to have achieved "significant recognition".

How does one show "distinction", "prominence" or "significant recognition " in one's artistic field? For the great majority of people working in the arts (such as actors, musicians, singers, dancers, fine artists and fashion designers), this requires meeting at least three out of six standards listed in the O-1 regulations. The only exception is if someone has been nominated for or won an Academy Award, Emmy, Grammy or other major award in his or her field of the arts.

The six standards that apply to all O-1B candidates who have not been nominated for or received a major award or prize may be summarized as follows:

1) Having performed, and will perform, services in a lead or starring role in events that have a "distinguished" reputation,

2) Receiving national or international recognition shown by reviews or articles in major publications,

3) Having performed, and will perform in a lead or starring role for organizations that have a "distinguished" reputation,

4)) Having a record of high box office receipts or ratings,

5) Testimonial letters from experts in the person's field,

6) Receiving a high salary compared to others in the field.

In the case of many O-1 candidates, standards 1) and 3) above are crucial, because in many artists' occupations, meeting the other standards, such as having one's name written about in major newspapers or publications, high box office receipts, or being paid a higher salary compared to other people in the field, may be uncommon, even for highly talented and accomplished artists or performers. (In contrast, it is not difficult for most O-1B candidates to find people who are willing to write recommendation or testimonial letters - but, no matter how many such letters one gathers, these letters alone are not enough to qualify for O-1B approval.)

For example, in the case of a fashion designer working for a large fashion design company. it would be quite normal for the company itself, or possibly the company's founder or owner, to be written about or have one's name mentioned in major publications or well publicized fashion collections.

But it might be unusual for an employee who is actually designing the apparel, accessories, or other items for the company behind the scenes to have his or her own name written about in major publications - or to receive an above average salary.

Therefore, for a great many O-1B candidates, it becomes necessary to show that he or she has performed or done work for - and will continue to perform or do work for - an employer with a "distinguished" reputation, and at "distinguished" events. The problem with these two requirements, therefore, is that whether or not someone receives approval for O-1B status may depend - not on the person's own ability and achievements, but on the employer's or prospective employer's reputation.

One common example of this issue is the case of someone in the arts who is clearly "distinguished" or "prominent" on the basis of having performed or worked for a well known organization or organizations in the past, but who is being sponsored to work for a new or otherwise less well known company in order to receive O-1B approval. No matter how "extraordinary" his or her past achievements may have been, the person may be denied O-1B approval because the new employer may be small or not very well known.

Therefore, the challenge in these cases is how to show that, in addition to the O-1B candidate's being "prominent" or "distinguished" for his or her own achievements, the prospective O-1 employer and the events that the O-1B candidate will be performing or working for in a leading capacity are also "distinguished".

To be continued in my next comment on this topic

Roger Algase is a New York based lawyer who graduated from Harvard College and Law School and has been practicing immigration law for more than 30 years, concentrating in skilled and professional w
ork visas and green cards. He can be contacted at algaselex@gmail.com