While knowing the O-1 criteria and regulations is important to understanding the O visa classification for individuals of extraordinary ability, let’s take a step back to appreciate the historical overview of the birth of the O visa classification:
In 1952, Congress passed the McCarran-Walter Act to establish a preference based quota system for nationalities and regions. The Act enumerated a list of nonimmigrant visa categories, which included the H-1 visa. Under the H-1 visa category, a foreign resident alien with “distinguished merit and ability” coming specifically to the United States to perform “temporary services of an exceptional nature requiring such merit and ability” would qualify for an H-1 visa.
Under the H-2 category, an alien could come into the country to perform temporary services or labor, provided there were no unemployed American workers capable of performing such service or labor. The H-visa categories neither specified particular occupations of aliens who qualified nor defined “distinguished merit and ability.” Entertainers and artists typically qualified under these categories, given the fact that artistic performances were more distinguishable and “exceptional in nature” than other occupations. Although foreign artists could utilize the H-2 category as a potential means of obtaining a visa, the H-1 visa category was preferable because, unlike the H-2 visa, it did not require a labor certification process to verify that an American was incapable of performing the specific services requested.
The lack of a clear definition of “distinguished merit and ability” led to the Immigration and Naturalization Service’s (INS) discretionary interpretation of the phrase. Prior to the Immigration Act of 1990 (IMMACT), INS’ liberal interpretation of this statutory term resulted in a high rate of approved artist visa petitions. This, in turn, spurred labor unions’ outcry for more restrictive legislation. Labor unions like the International Alliance of Theatrical Stage Employees (IATSE) and Actor’s Equity Association (AEA) were particularly concerned with INS’ inability to monitor artists after they entered the country.
Foreign artists who remained beyond their approved projects competed with Americans for jobs in the entertainment industry (even though these foreign artists were supposed to reapply for a new H-1 visa). Contrary to labor unions’ concerns about job competition, however, a 1988 study concluded that the H-1 visa program did not adversely impact U.S. labor participants. As a result of this report, INS modified its own regulatory definition from “distinguished ability” to “prominence,” which lowered the standard for artists and entertainers. Organized labor unions quickly lobbied for a more precise definition of “distinguished” to deter more average foreign entertainers from entering the U.S.
In response to the unions’ lobbying efforts, President George H.W. Bush signed into law the Immigration Act of 1990, which implemented a vast change in the visa categories for which foreign performers and artists qualified. Congress originally created the O- and P- visa categories through the Immigration Act of 1990, known as IMMACT, for the new visa categories to take effect in 1991 and remove the entertainment occupations from the H-visa category. Congress devised these categories in order to respond to union lobbying efforts, to redefine and preserve the H-visa to “specialty occupations” that excluded artists and entertainers from the definition, and to create separate visa categories and standards for these aliens.
Under the 1990 O- and P- visa categories, the O-1 visa applied to aliens with “extraordinary ability in the . . . arts . . . which has been demonstrated by sustained national or international acclaim . . . .”. Artists in motion picture and television production had to show “a demonstrated record of extraordinary achievement . . . recognized in the field through extensive documentation.” Unlike the H-visa requirements, the O-1 visa category generated a taxonomy of qualifying occupations, but it also distinguished between artists’ standard of success in the arts from that of artists in the film and television industries specifically. The presumption made in this distinction was that a onetime achievement in film or television substantially proved an alien’s ability more so than a one-time achievement in other arts arenas.
In addition, the O-1 category also required the Attorney General, prior to approving a performer’s visa application, to determine whether the alien’s admission would “substantially benefit prospectively the United States” (later eliminated through an amendment in 1991). The O-2 applied to aliens who planned to join an O-1 visa holder and who provided unique, critical skills to an O-1 visa artist’s performance. The final category, the O-3 visa, applied to spouses or children of the O-1 performer who planned to join or accompany the principal O-1 visa holder.
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