Category Government visitors

Getting a Visa as a Temporary Worker in a Selected Occupation (O, P, or R Visa)

A. Do You Qualify for an O, P, or R Visa?……………………………………… 24/4

1. O-1 Visas: Persons of Extraordinary Ability in the Arts, Athletics, Science,

Business, and Education………………………………………………………. 24/4

2. O-2 Visas: Support Staff for People With O-1 Visas………………. 24/6

3. O-3 Visas: Accompanying Relatives of Those With O-1…………… and O-2 Visas 24/6

4. P-1 Visas: Outstanding Athletes, Athletic Teams, and

Entertainment Companies…………………………………………………….. 24/7

5. P-2 Visas: Participants in Reciprocal Exchange Programs………. 24/9

6. P-3 Visas: Culturally Unique Groups……………………………………. 24/9

7. Support Personnel for P-1, P-2, and P-3 Visa Holders…………. 24/10

8. P-4 Visas: Accompanying Relatives of People With P-1, P-2, and P-3 Visas..24/10

9. R-1 Visas: Religious Workers……………………………………………… 24/10

10. R-2 Visas: Accompanying Relatives of Those With R-1 Visas… 24/10

B. Quick View of the O, P, and R Visa Application Process…………….. 24/11

C. Step One: Your Employer Submits a Visa Petition……………………….. 24/12

1. Simultaneous Change of Status If You’re Already in the U. S…… 24/12

2. Assembling the Visa Petition………………………………………………. 24/13

3. Mailing the Visa Petition…………………………………………………….. 24/17

4. Awaiting a Decision on the Visa Petition……………………………… 24/17

D. Step Two: Applicants Outside the U. S. Apply to a U. S. Consulate… 24/18

E. Step Three: You Enter the U. S. With Your O, P, or R Visa………….. 24/19

F. Extending Your U. S. Stay……………………………………………………….. 24/20

1. Extension Petition……………………………………………………………… 24/20

2. Visa Revalidation………………………………………………………………. 24/20

A

few types of short-term work visas are available to people doing specialized work. These include o and P visas for certain out­standing workers in the sciences, arts, education, business, entertain­ment, and athletics, and R visas for religious workers. (see I. N.A. § 101(a)(15)(o), 8 u. s.C. § 1101(aX15Xo), 8 C. F.R. § 214.2(o)(1)(ii)(A)(1); I. N.A. § 101(a)(15)(P), 8 u. s.C. § 1101(a)(15)(P), 8 C. F.R. § 214.2(o)(1)(i); and I. N.A. § 101(a)(15)(R), 8 u. s.C. § n01(a)(15)(R); 22 C. F.R. § 41.58; 8 C. F.R. § 214.2(r).)

A job offer from a u. s. employer is a basic requirement for all these visas. There is no annual limit on the number of people who can receive o, P, or R visas.

Do you need a lawyer? You can’t apply for an O, P, or R visa without having an employer first—and it’s in your employer’s interest to hire a lawyer to help. A lawyer can help make sure that your application gets done right the first time.

Key Features of the O, P, and R visas

Here are some of the advantages and disadvantages of these specialized work visas:

• You can work legally in the U. S. for your O, P, or R sponsor. If, how­ever, you want to change jobs, you must get a new visa.

• O, P, and R visas can be issued quickly.

• O visas will be granted for the length of time necessary for a par­ticular event, up to a maximum of three years, with unlimited exten­sions in one-year increments.

• P visas will be granted for the length of time needed to complete a particular event, tour, or season,

up to a maximum of one year. However, P-1 athletes may be admitted for a period of up to five years with one extension of up to five years.

• R visas will be granted for initially up to three years, with extensions up to a maximum total of five years.

• You may travel in and out of the U. S. or stay there continuously for as long as your visa stamp and sta­tus are valid.

• Your spouse and unmarried chil­dren under age 21 may accompany you, but they may not not accept employment in the United States.

A. Do You Qualify for an O, P, or R visa?

Pay close attention to the eligibility crite­ria for these visas: The O, P, and R visa categories are quite narrow in scope.

Attending Your consular Interview

As part of your application, the consulate will require you and your family mem­bers to attend an interview. During the interview, a consular officer will examine the data in your application for accuracy, especially regarding facts about the sub­stantiality of the business and the nation­ality of the owners. Evidence of ties to your home country will also be checked. During the interview, you will surely be asked how long you intend to remain in the United States. Any answer indicat­ing that you are unsure about plans to return or have an interest in applying for a green card is likely to result in a denial of your visa. (See Chapter 4 for what else to expect during consular interviews, and what to do if your application is denied.)

Once your E-1 visa is approved, you will probably be asked to return later to pick it up. However, your visa may be approved only provisionally, awaiting security checks, which can add weeks or months to the process.

D. How to apply If You’re in the U. S.

If you are physically present in the U. S., you may apply for E-1 status without leaving the country on the following conditions:

• you entered the U. S. legally and not on a visa waiver

• you have never worked illegally

• the date on your I-94 card has not passed, and

• you are admissible and none of the bars to changing status apply to you (see Chapter 3).

If you were admitted as a visitor with­out a visa under the Visa Waiver program, you may not apply from within the united states. similarly, you can’t take advan­tage of this option if you entered the U. S. using a C (alien in transit), TWOV (alien in transit without a visa), D (crewman),

K-1 (fiance), K-2 (dependent of a fiance), j-1 (exchange visitor), or M-1 (vocational student) visa.

О

Your eligibility to apply in the U. S.

has nothing to do with your overall eligibility for an E-1 visa. Many applicants who are barred from filing in the U. S. but otherwise qualify for E-1 status may still apply successfully for an E-1 visa at a U. S. consulate in another country.

There is another problem that comes up only in U. S. filings. It is the issue of what is called preconceived intent. To approve a change of status, UsCIs must believe that at the time you originally entered the U. S. as a visitor or with some other nonimmigrant visa, you did not intend to apply for a different status. If USCIS thinks you had a preconceived plan to use one visa to enter the U. S. with an eye to applying for a different status after getting there, it may deny your application. (You can get around the preconceived intent issue by leaving the U. S. and applying for your E-1 visa at a U. S. consulate in another country.)

In technical terms, what you will be applying for in the U. S. is a change of status. To do so, you’ll need to file an application with USCIS on Form I-129 (Petition for a Nonimmigrant Worker), with accompanying documents to prove your eligibility. If your spouse and chil­dren will be accompanying you, they must file for their change of status on a different form, called Form I-539.

If you decide to apply for a change of status within the U. S., you should realize that you still don’t have the E-1 visa that you’ll need if you ever leave the U. S.—a change of status only gives you E-1 sta­tus. Visas are never given inside the Unit­ed States They are issued exclusively by U. S. consulates in other countries. If you file in the U. S. and you are successful, you will get to remain in the U. S. with E-1 privileges until the status expires.

But should you leave the country for any reason before that time, you will have to apply for the visa itself at a U. S. consul­ate before returning to the United States. Moreover, the fact that your E-1 status has been approved in the U. S. does not guarantee that the consulate will also approve your visa. You’ll have to present a whole new application, and they will

evaluate it with little or no consideration for the previous USCIS decision. For this reason, many people find it easier to leave the u.s. and apply at a u.s. consulate from the start. Preparing the Change of Status application The checklist below will help you prepare the documents and forms for your change of status application.
E-1 change of Status checklist □ Form I-129, with E Supplement (signed and submitted by you, if you're selfemployed, or by your employer). □ Filing fee: $190. □ If your family members are with you and need a change of status, Form I-539 with accompanying fee (currently $200) and copies of your family members' I-94s or other proof of lawful immigration status and of their relationship to you, (such as marriage and birth certificates). One Form I-539 and fee will cover your spouse and all your children. This form is meant to be filled out and signed by your family members, not by your employer. □ If either you or your spouse have ever been married before, copies of divorce and death certificates showing termination of all previous marriages. □ A copy of your I-94 or other proof of your current lawful, unexpired immigration status (except Canadians visitors, who are not expected to have I-94 cards). □ Proof of the nationality of the qualifying business owners. □ Proof that you are a key employee. □ Proof of the existence of an active business. □ Proof that a majority of the company's trade is between the U.S. and your home country. □ Proof that the trade is substantial. □ Documents establishing your intent to leave the U.S. when your status expires, such as deeds verifying ownership of a house or other real property, written statements from you explaining that close relatives are staying behind, or letters from a company showing that you have a job waiting when you return from the United States. □ Cover letter (optional). If requesting quick (premium) processing: □ Form I-907, with $1,000 filing fee.

For further explanation of some of the key items on this checklist, see Subsec­tion C1, above.

Although it is not a requirement, one additional item that you may wish to add to the paperwork package is a cover let­ter. Cover letters act as a summary and index to the forms and documents, and are often used by immigration attorneys or u. s. companies that process many visas for their employees. Cover letters begin with a statement summarizing the facts of the case and explaining why the particular applicant is eligible for the visa. This statement is followed by a list of the forms and documents submitted. If it is carefully written, a cover letter can make the case clearer and easier to process for the consular or usCIs officer evaluating it. This is particularly important in an E-1 visa case where the documentation by itself may require explanation. Cover let­ters must be individually tailored to each case, so if you don’t think you can write a good one, just leave it out and submit only your forms and documents; or hire an attorney to help.

2. Mailing the Change of Status Petition

After assembling the I-129 petition, mail it to the usCIs regional service center listed in the instructions to Form I-129. Currently, only the California and Texas Service Centers accept I-129 petitions for E-1 change of status candidates. USCIS regional service centers are not the same as USCIS local offices—for one thing, you cannot visit regional service centers in person.

O-1 visas: Persons of Extraordinary ability in the arts, athletics, Science, Business, and Education

o-1 visas are available to persons of proven extraordinary ability in the sci­ences, arts, education, business, or athletics. To be considered a person of extraordinary ability, you must have sus­tained national or international acclaim, or, if you work in motion pictures or television productions, you must have a demonstrated record of extraordinary achievement. o-1 visas can be given only on the basis of individual qualifications. Membership in a group or team is not by itself enough to get you the visa. In addition, you must be coming to work or perform at an event or a series of events in the area of your extraordinary ability.

a. Extraordinary ability in Science, Education, Business, or athletics

To meet o-1 standards, you must be able to show that you have extraordinary abil­ity and that you have received sustained national or international acclaim. This can be demonstrated if you have got­ten a major internationally recognized award such as a Nobel Prize, or if you have accomplished at least three of the following:

• received a nationally recognized prize or award for excellence

• membership in associations that require outstanding achievements of their members in your field of expertise, as judged by recognized national or international experts

• published material in professional or major trade publications or major media about you and your work

• participated, on a panel or individu­ally, as a judge of the work of oth­ers in your field

• made an original scientific, scholarly, or business-related contribution that is of major significance in the field

• authored scholarly articles in profes­sional journals or major media

• been previously employed in a critical or essential capacity for an organization with a distinguished reputation, or

• command or have commanded a high salary or other outstanding remuneration for your services.

If the above criteria do not readily apply to your occupation, the company petitioning for you may submit compa­rable evidence in order to show that you are “extraordinary.” Be sure to explain why the above criteria do not apply.

b. Extraordinary Ability in the Arts

If you are applying as an 0-1 alien of extraordinary ability in the arts, you should first make sure your work fits the definition of art. The category of arts is defined broadly in the usCIs regulations, to include:

. . . any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts. Aliens engaged in the field of arts include not only the principal creators and performers but other essen­tial persons such as, but not limited to, directors, set designers, lighting design­ers, sound designers, choreographers, choreologists, conductors, orchestrators, coaches, arrangers, musical supervisors, costume designers, makeup artists, flight masters, stage technicians, and animal trainers.

(see 8 C. F.R. § 214.2(o)(3)(ii).)

You must also be coming to the u. s. to perform in the area of extraordi­nary ability and must be recognized as prominent in your field of endeavor. You can demonstrate your recognition with documents showing that you have been nominated for or have received signifi­cant national or international awards or prizes in your particular field, such as an oscar, Emmy, Grammy, or Director’s Guild Award. Alternately, you can sup­ply (to your employer, for submission on your behalf) at least three of the follow­ing forms of documentation:

• evidence that you have performed, and will perform, services as a lead or starring participant in produc­tions or events that have a distin­guished reputation as evidenced by critical reviews, advertisements, publicity releases, publication con­tracts, or endorsements

• evidence that you have achieved national or international recogni­tion for achievements evidenced by critical reviews or other published materials by or about you in major newspapers, trade journals, maga­zines, or other publications

• evidence that you have performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distin­guished reputation, as evidenced by articles in newspapers, trade jour­nals, publications, or testimonials

• evidence that you have a record of major commercial or critically acclaimed successes (as evidenced by title, rating, standing in the field, box office receipts, motion pictures, or television ratings) and other occupational achievements reported in trade journals, major newspapers, or other publications

• evidence that you have received significant recognition for achieve­ments from organizations, critics, government agencies or other rec­ognized experts in the field. such testimonials must be in a form that

clearly indicates the author’s author­ity, expertise, and knowledge of your achievements or,

• evidence that you have either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence.

If the above criteria do not lend them­selves to your situation, your petitioning employer may submit alternative but comparable evidence in order to estab­lish your eligibility.

Awaiting a decision on the visa Petition

Within a few weeks after mailing in the petition, you or your employer should get back a written confirmation that the papers are being processed, together with a receipt for the fee. This notice will also contain your immigration file num­ber. If USCIS wants further information before acting on your case, all petition papers, forms, and documents will be returned with a form known as a Re­quest for Evidence. Supply the extra data requested and mail the whole package back to the service center.

E-1 petitions are normally approved within two to three months. When this happens, USCIS will send you a Form I-797 Notice of Action, showing that the change of status has been approved. A new I-94 card will be attached to the bot­tom of the form.

Faster processing—at a price. For

$1,000 over and above the regu­lar filing fees, USCIS promises premium processing of the visa petition, including a decision within 15 days. To use this service, you must fill out an additional application (Form I-907) and submit the application to a special USCIS service center address. For complete instructions, see the USCIS web­site at www. uscis. gov.

E. Using Your E-1 Visa to Enter the U. S.

If you applied for your E-1 visa at a U. S. consulate abroad, you have until the expiration date on your E-1 visa to enter the united states. The border officer will examine your paperwork, ask you some questions, and if all is in order, approve you for entry. He or she will stamp your passport and give you a small white card called an I-94 card. It will be stamped with a date showing how long you can stay. Normally you are permitted to remain for two years at a time, without regard to when your visa actually expires (a visa is just an entry document—the I-94 shows the length of your E-1 status). Keep track of the whereabouts of this card, and make spare copies to keep in a safe place. You’ll need it to prove your entry and to apply for extensions.

Each time you exit and reenter the u. s., you will get a new I-94 card authorizing your stay for an additional one – or two – year period. If you do not wish to leave the U. S. after that time, you can apply for extensions of stay, which are issued in two-year increments for as long as you maintain your E-1 status qualifications.

Watch out for
Summary Exclusion

The law empowers a Customs and Border Protection (CBP) inspector at the U. S. airport or border to summarily (without allowing judicial review) bar entry to someone requesting admission to the U. S. if either of the following are true:

• The inspector thinks you are lying about practically anything connected with entering the U. S., including your purpose in coming, intent to return, and prior immigra­tion history. This includes the use or suspected use of false documents.

• You do not have the proper docu­mentation to support your entry to the U. S. in the category you are requesting.

If the inspector excludes you, you cannot be readmitted to the U. S. for five years, unless USCIS grants a special waiver. For this reason it is extremely important to understand the terms of your requested status, and to not make any misrepresentations. If you are found to be inadmissible, you may ask the CBP inspector to withdraw your application to enter the U. S. in order to prevent having the five-year deporta­tion order on your record. The CBP may allow this in some exceptional cases.

F. Extending Your U. S. Stay

E-1 visas can be extended for up to five years at a time and E-1 status stays can be extended for two years at a time. When you enter the u. s. with an E-1 visa, your authorized stay as indicated on your I-94 card, which is limited to two years at a time, may elapse before the expiration date of your visa. Therefore, depending on your situation, you may need to extend just your I-94 card, your visa or both.

Although an extension is usually easier to get than the E-1 visa itself, it is not automatic. usCIs or the consulate has the right to reconsider your qualifications based on any changes in the facts or law. When the original application for an E-1 visa or status was weak, it is not unusual for an extension request to be turned down. As always, however, good cases that are well prepared will be successful.

If you have received E-1 status in the u. s. but never applied for a visa, it’s best to stay in the U. S. to apply for an exten­sion of your status (in case the consulate disagrees with usCIs’s original decision approving your E-1 status). However, if you have an E-1 visa that is still valid but your I-94 card is about to expire, it is generally better to leave the u. s. and return again instead of trying to extend your status in the United States. When you return to the U. S. on your valid E-1 visa, you will automatically receive a new I-94 card and a new one – or two-year period of authorized stay. By leaving and reentering, no extension ap­plication will be needed and there will be no reevaluation of your qualifications.

The general procedures for an E-1 extension from within the U. S. are the same as those described in Section D, above. The forms, documents, and fees are identical.

Working While Your Extension
application Is Pending

If you file your application for an exten­sion of E-1 status before your authorized stay expires, you are automatically permitted to continue working for up to 240 days while you are waiting for a decision. If, however, your authorized stay expires after you have filed for an extension, but before you receive an approval, and more than 240 days go by without getting a decision on your ex­tension application, your work authori­zation ends and you must stop working.

G. Visa Revalidation

If you leave the U. S. with an expired E-1 visa stamp, you must have a new visa issued at a consulate before return­ing (even if you’ve extended your E-1 status with USCIS). Reread procedures for consular filing in Section C, above. The procedures for consular visa exten­sions are identical. If you are outside the U. S. with a valid (unexpired) visa, you need only reenter and a new I-94 card authorizing your stay for one year will be given to you. ■

O-2 Visas: Support Staff for People With o-1 visas

o-2 visas are available to people who work as essential support personnel of o-1 athletes and entertainers. o-2 visas are not available in the fields of science, business, or education. o-2 workers must be accompanying o-1 artists or athletes and be an integral part of the actual performance. The o-2 worker must also have critical skills, as well as experience with the particular o-1 worker, that are not general in nature and cannot be per­formed by a u. s. worker.

In the case of motion picture or televi­sion productions, there must be a preex­isting, long-standing working relationship between the o-2 applicant and the o-1 worker. If significant portions of the pro­duction will take place both in and out of the u. s., o-2 support personnel must

Special rules for Workers
on Television and movie
Productions

If you’re an artist, entertainer, direc­tor, technical, or creative staffperson seeking a visa to work on a television or motion picture production, certain special rules apply to you. First, you must prove not merely a "high level of achievement," but a "very high level of accomplishment" in the motion picture and television industry. You’ll need to show evidence that your skill and recognition is significantly higher than that ordinarily encountered. You’ll need to show the same sorts of evi­dence as other artists, but you won’t have the option of showing compara­ble evidence if you can’t come up with anything on the USCIS’s list.

be deemed necessary for the achieve­ment of continuity and a smooth, suc­cessful production.