One of the lesser-known non-immigrant visas are the O and the P visa. The statutory authority creating the O visa is found in INA Section 101(a)(15)(O) which was added by Section 207 of the Immigration Act of 1990, as modified by sections 204, 205 and 207 of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991.
The O visa is for highly talented or acclaimed foreign nationals. This includes athletes, artists, entertainers, and high-end chefs. To obtain an O visa, the petitioner must submit evidence of extraordinary achievement in the field of expertise. The evidence must show that the beneficiary of the petition is entering the U.S. to continue work in that field of expertise. For example a reggae artist, such as Shaggy or Bounty Killer, must show to the BCIS that they are either entering the U.S. to perform in a concert, or to receive a prize in that field of endeavor.
The evidence of “extraordinary” achievement can be (1) receipt of nationally or internationally known awards (2) membership in associations that require high achievement for entrance (3) published material in professional or major trade publications (4) Participation on a panel or as a judge of the work of others in the same or similar field, (5) Original scholarly articles in professional journals, (6) Current employment in organizations that have a distinguished reputation.
Whereas the O nonimmigrant visa is for individual artists, athletes, and entertainers, the P visa is better suited for group artists and trips of limited duration. An approved P visa is valid for up to 5 years. As compared to the H-1B visa, that has a dual intent of seeking permanent residence in the country and not abandoning the home country, there is no such dual intent with the P visa. Nevertheless, beneficiaries of the P-1, can apply to adjust their status to that of a permanent resident while admitted in the P status.
Group petitions for the P visa must include a statement listing the name of each group member, their dates of employment, and evidence that the group had been performing together for at least a year. It is important to note that any P petition must be accompanied by a letter of consultation from a labor organization. This requirement was put in the statute to appease the interests of organized labor.
P-2 visas, are reserved for artists and entertainers, either individually or as a group pursuant to a reciprocal exchange program between the U.S. and a foreign country, that provides for the temporary exchange of artists and entertainers. Again, a labor union must be involved in establishing the program or at least agree to it. There aren’t many P-2 visas granted each year, but the more prominent ones are those established by the Actors Equity union, with its’ British counterpart and the American Federation of Musicians (with its Canadian counterpart).
The P-3 visa is narrower in scope than the P-2 and the P-1 visa. The P-3 classification is for culturally unique artists and entertainers, individually or as a group, entering the U.S. to develop and teach their particular art or discipline. The government defines culturally unique as a style or artistic _expression, unique to a particular country. The P-3 petition must include, affidavits, testimonials, or letters from experts testifying to the cultural uniqueness of the individual’s or group’s performance. Also, documentation that the performance of the beneficiary is unique as evidenced by newspaper and journal articles.
All P petitions allow for the beneficiaries to add “essential personnel”. An “essential personnel” is an alien who is highly skilled and an integral part of the performance of the primary beneficiary, and whose skills cannot be replaced by a U.S. worker. Next week I will begin a 2 part article series on the H-1B Visa.
Sean Keane-Dawes, is a licensed to practice law in Massachusetts, New Jersey and Texas. His principal office is in Texas at 222 Pat Booker Rd, Suite 136, Universal City, TX 78148. For more information on immigration topics, please visit his website at www.skdlaw.com or e-mail at [email protected].
