O and P Visas
O and P Visas
Immigration Law – Employment: O and P Visas
O and P Visas Non-Immigrant Visas
O and P visas are non-immigrant visas, meaning they are temporary, unlike an immigrant visa, which grants permanent residency and leads to naturalization. They are primarily meant for entertainers, such as musicians or athletes.
This section will focus on musicians and other entertainers.
In order to choose the appropriate visa, the first question is whether the person coming is an individual entertainer or whether one is bringing an entertainment group.
The focus of the O visa is whether the individual has exceptional ability.
The focus of the P visa is whether the group has international recognition.
Both visas have many things in common but there are some differences. First, we address the common requirements. Then we address the differences between these two visas in terms of bring musical talent to the United States.
- The P visa is available for athletes and entertainment groups. It allows an entertainment group to bring to the United States their support staff and their immediate families.
- Unlike many visas that allow a certain number of visas to be issued each year, there is no limit on the number of P visas that can be issued.
- Documents providing independent evidence of the group’s international recognition.
- Information about each members’ or the group’s accomplishments.
- The group members’ resumes.
- Copies of any educational degrees or transcripts.
- Copy of employment contact with a U.S. employer or his or her agent.
- Itinerary or schedule of events.
- Description of the events or performances.
- Advisory opinion from a labor organization.
Time of filing and length of stay:
- The petition may be filed up to one year before the need (the scheduled event) arises.
- Emergency filing is also available if certain conditions are met.
- The length of stay is how long it will take to perform all the shows scheduled on the itinerary.
- The length of stay, while open-ended, is not indefinite. This is a temporary visa.
If the group is doing a tour and will have more than one employer:
- Each employer must file a separate petition, UNLESS
- If there is an agent working on behalf of both employers, a single petition may be filed by the agent on behalf of the employers.
- An agent can also be working on behalf of the group who uses agents to arrange for short-term performances on their behalf.
- The agent working on behalf of the employer must specify the wage and other terms of employment offered to the performing group in a contact, which includes an itinerary of definite employment (start and ending dates).
- The agent will be working on behalf of one or more employers as well as the performing group.
The standard for the entertainment group:
- Each individual member must perform and be an integral and essential part of the performance, and
- He or she must have a sustaining and substantial relationship with the group, i.e. be a member of at least one year.
- The group must have been playing together for at least one year, or at least 75% of its members have been together for a year.
- The group must have international recognition to qualify for a P Visa. If they do not have that level of acclaim, they can file under an H-2b visa, which requires a labor certification from the Department of Labor and has an annual limit on the number of visas that can be issued.
- A P visa does not require a labor certification from the Department of Labor.
What is an advisory opinion from a labor organization?
- This opinion is mandatory – the petition will be denied without it.
- The labor organization must be one that represents people in the group’s specific field of entertainment.
- USCIS, the immigration authority with which the petition is filed, has a list of qualifying organizations available to American Immigration Lawyers Association members.
- The opinion must be signed by the authorizing official and must discuss the nature of the work to be done, and the musician’s qualifications.
- If there is no labor organization, the opinion can be substituted with affidavits from people in the musician’s field.
- These labor organizations should not be confused with the labor certification that one must obtain from the Department of Labor for other types of non-immigrant visas.
Once the Petition filed by the employer is approved by USCIS, which is part of the Department of Homeland Security, the case will transfer to the U.S. Embassy or Consulate, which is part of the Department of State, where the musicians in the group live. They can then apply for the P Visa through the embassy or consulate. This is done over the internet.
- When applying for the P visa with the embassy or consulate, the musician must convince the officer that he or she is maintaining a home in their home country that they have no intent of abandoning.
- In case the musician finds a permanent job in the United States with an employer willing to file for an immigrant visa (permanent), this will not interfere with getting the P Visa. This does not apply to support personnel. Here, it will interfere with their P visa.
- Support personnel must be listed on a separate petition of their own and cannot be included with the petition listing the musicians.
- Family members can come with the musician, but they cannot work without work authorization from USCIS.
- If the employment ends early, the petitioner has the duty to pay for the musician’s return transportation costs to return the musician from where they came.
Tax Issue if There is More Than One Employer:
- Alice Vacek Aranda, Esq. is not a tax attorney so this information is based on common knowledge of taxes and should not replace the need of seeking advice from a CPA.
- First issue: are the musicians’ employees or independent contractors. If employees, the person bringing them must provide them with a W-2; if they are independent contractors, the person bringing them must file a 1099-Miscellaneous.
- If there are two or more employers, each employer will have to file a separate petition, and then would pay the withholding tax for the amount of income the group earned for that specific employer. The funds earned should not be co-mingled.
- It is really important to have an experienced CPA assist the employer with the P visa.
If the musician is an individual, the person bringing the musician would file for an O visa. An O visa is similar to a P visa but it is open to more professions. It has a wider range of application. The person applying for the O visa must have exceptional ability in his or her field.
- Unlike the P visa petition, in which multiple people in the same category can be listed, with the O visa, only one person can be named in the petition.
- The individual must be coming to work for a U.S. employer. The O visa is not appropriate for someone who will be self-employed.
- The length of the stay depends on the project. There may be many parts to the project as long as the project is defined as one project. In terms of musicians, there can be a number of concerts as long as the concerts are defined in the petition as one tour.
- The regulations allow for a 3 year length of stay, which can be extended. During this time, the musician applying for the O visa can take vacations, make promotional appearances and other stoppages as long as he or she maintains the main event – the tour.
- Exceptional ability is defined as distinction or prominence.
- To establish distinction or prominence, once can submit as evidence critical reviews, box office receipts, sales of records, documents regarding pay received.
- The extraordinary standard under the O visa for an artist is lower than it is for an O visa applicant in business or science.
- The performance that the musician is coming for must place him in a leading or starring role.
- The advisory opinion must be from a peer group, a labor organization or a management organization with experience in the specific field involved.
If the reader has additional questions, please contact our office for a consultation appointment.
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