O-1s for Highly Qualified Fashion Designers, Performance Artists and Others in the Arts

The O-1 may be an option for those who did not get an H-1B visa number. Unlike H-1Bs, which have a shortage of visa numbers, there is no limit to the visa numbers for the O-1 category. Because it is for those with “extraordinary ability”, it generally is not suitable for those who have just graduated from university, or young people just starting out in their career. The O-1 allows those who have shown extraordinary ability in the sciences, education, business, athletics, the arts, or in the motion picture and TV industries to come to the U.S. temporarily for up to three years initially, and then may be extended.

Thus, suppose you are a fashion designer with national or international renown who did not get an H-1B visa number in the visa lottery this year, you may still apply for an O-1. Additionally, there is no requirement for the O-1 to prove that the beneficiary is a “professional”, thus there is no requirement that the O-1 applicant have a four-year bachelor’s degree that is closely related to his or her field.

For example, musicians who lack a bachelor of music or others who cannot show both that the position is a professional position and that they have the requisite degree and so are not eligible for an H-1B, may be eligible for an O-1 because as long as you can show the requisite degree of success in your field, you may obtain an O-1 even if you have no formal degree, or the job itself is not professional.

This article will focus on O-1s in the arts, which have an easier legal standard to satisfy than O-1s in the sciences, business and education. Federal regulations define “arts” very broadly to include the following:

1)  fine arts, i.e., painting, drawing, etc;

2)  visual arts, i.e., industrial design, graphic design, fashion design, fashion modeling, interior design, photography, are just some examples;

3)  culinary arts, i.e., top French chefs; top pastry chefs, etc., and

4)  performing arts, i.e., singers, composers, musicians, actors, dancers, directors, choreographers, etc.

You may be eligible for an O-1 even if you are not the principal creator and performer, but essential to the production, including directors, set designers, lighting designers, sound designers, choreographers, conductors, orchestrators, coaches, arrangers, musical supervisors, costume designers, makeup artists, flight masters, stage technicians, and animal trainers.

The legal standard for an O-1 in the arts is somewhat lower than the exceptionally high standard in the fields of business, sciences and education. While in the areas of business and science, you have to prove that you are one of the few at the very top of your field, in the area of arts, you instead must prove “distinction”, meaning “renowned, leading, or well-known in the field of arts”.

One advantage of the O-1 over the H-1B, is that you do not need a single employer to be the petitioner. The O-1 allows you to use a US agent as the petitioner. The U.S. agent may be: the actual employer of the beneficiary; the representative of both the beneficiary and the employer; or a person or entity authorized by the employer to act in its place. The agent and beneficiary must have a written contract, and if there are a series of events or performances in various locations or with various employers, a detailed itinerary with dates, locations, etc.

O-1s also generally require a written advisory opinion from a peer group, union, labor and or management organization. To give you an idea of the various organizations suitable for an O-1B advisory opinion, USCIS has a non-exhaustive list, at https://www.uscis.gov/working-united-states/address-index-i-129-o-and-p-consultation-letters.

If one has not been nominated for, or received, significant national or international prizes, such as an Academy Award, an Emmy, a Grammy, or a Director’s Guild Award, the beneficiary must show at least three of the following:

1)  they have performed a lead or starring role in productions with a distinguished reputation;

2) leading or critical role for organizations or establishments with a distinguished reputation;

3) they have national or international acclaim as shown by critical reviews or articles in major newspapers, trade journals, etc;

4)  major commercial or critically acclaimed success;

5)  significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field;

6)  high salary or substantial remuneration.

7)  A catch-all category, so the beneficiary can submit “comparable evidence” if the list above is not directly applicable to their field.

Copyright 2019 © Heidi J Meyers, all rights reserved.

Filing for Asylum When You Have Missed the One-year Deadline

According to federal regulations, a foreign national who fears persecution in his or her home country, must apply for asylum within one year of their entry date in order to be eligible.

First, we will review the requirements for meeting the one-year deadline for asylum. Suppose you entered the U.S. on January 25, 2019, you would have until January 26, 2020 to file your asylum application. If the last day falls on a Saturday, Sunday, or federal holiday, then the applicant has until the following business day to meet the one-year deadline. The USCIS (US Citizenship and Immigration Service) or the Immigration Court would have to receive the I-589 asylum application by the deadline.

If USCIS receives the I-589 application, but it is not complete, meaning every single box is filled in or checked, USCIS will return the application to the applicant within 30 days. If USCIS rejects the application, it is not considered to have been received. However, if you complete all the corrections and return it promptly, it may be considered to meet one of the exceptions and considered filed timely.

The best practice is to file the asylum application well before the one-year deadline. It does not make sense to get into a contentious dispute with DHS if the application was received exactly at the one-year mark. The Immigration Judges, BIA and USCIS generally apply a high bar to showing exceptions to the one-year rule, so it is best to just comply and meet the deadline rather than arguing over an exception later on.

What happens if you miss this deadline and you fear returning to your home country? Let us take an example. A young man from India comes to the U.S. as an F-1 student to study computer engineering as an undergraduate. After four years, he graduates with his bachelor’s, works for a year with OPT and then returns to school to study for his masters. By now, almost six years have passed since he first came to the U.S. It just so happens that this young man happens to be Christian, from one of the scheduled castes. Since the election of Narendra Modi in 2014, there has been an exponential increase in violence against Christians in India. Recently, in a phone call, his parents told him that their family church which he attended since birth has been burned down by Hindu extremists, and that there are RSS vigilantes in their area practicing paramilitary exercises regularly. His family is terrified. The BJP government is not doing anything to protect Christians, and in fact is encouraging Hindu extremism. Local politicians are demanding that Christians and Muslims either convert to Hinduism or leave India. The young man has missed the one-year deadline to apply for asylum. Is there some exception whereby he would still be eligible?

Many people miss the one-year deadline for various reasons. What are the exceptions to the one-year rule? What if you have been living in the US for a number of years, is it possible you are still eligible for asylum?

According to 8 CFR 208.4(a)(4), an applicant may still be eligible for asylum if he or she proves “changed circumstances”, which include:

(A) Changes in country conditions;

(B) Changes in the applicant’s own circumstances, such as changes in US law, or activities he or she becomes involved with in the US ; or

(C) Minors who were included on their parents’ I-589, and who reach the age of 21, have a reasonable period of time after their birthday to file their own asylum application. Additionally spouses of asylum applicants who are divorced or widowed, the divorce or death of the spouse is considered a changed circumstance.

Applicants with changed circumstances must file their I-589 asylum application within a reasonable period of time after the change. If the applicant can show they did not know about the change in circumstances for a certain period of time, “such delayed awareness shall be taken into account in determining what constitutes a ‘reasonable period’ “.

The second category of exceptions from the one-year deadline is extraordinary circumstances. Extraordinary circumstances include the following:

(i)           Serious illness or mental or physical disability, including any effects of persecution or violent harm suffered in the past, during the one-year period after arrival;

(ii)         Legal disability (for example, the applicant was an unaccompanied minor or suffered from a mental impairment) during the one-year period after arrival;

(iii)        Ineffective assistance of counsel – your attorney did not do their job causing you to miss the deadline (Lozada complaints are a whole other discussion, I will not go into the details of them here);

(iv)        The applicant maintained TPS (Temporary Protected Status), lawful immigrant or nonimmigrant status, or was given parole, until a reasonable period before the filing of the asylum application;

(v)         The applicant filed an asylum application prior to the expiration of the one-year deadline, but that application was rejected by USCIS as not properly filed, was returned to the applicant for corrections, and was refilled within a reasonable period thereafter; and

(vi)        The death or serious illness or incapacity of the applicant’s legal representative or a member of the applicant’s immediate family. 8 CFR 208.4(a)(5).

Returning to our example above, the young man meets a combination of extraordinary circumstances and changed conditions. Initially, during his first year in the U.S. and continuing up to the present, he has maintained legal immigration status, thus, he can show he meets one of the extraordinary circumstances exceptions, as he has maintained legal status up to a reasonable period before filing for asylum. Second, he also meets the changed country conditions exception, as conditions in India for Christians have dramatically worsened with the rise of Hindu fundamentalism, and there has been a dramatic increase in violence against Christians, as well as the burning down and vandalism of churches, since when he initially came to the U.S. Thus, our young man would have a good argument that he is eligible for an exception to the one year rule, and should be eligible to apply for asylum.

Copyright 2019 © Heidi J. Meyers all rights reserved

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