U.S. Immigration Considerations for Media and Entertainment Industries

The entertainment and media industries strive to hire only the best and most talented individuals, irrespective of country of origin, and talent determination of those individuals can be subjective. This primer provides fundamental information on immigration topics, options and compliance considerations for media and entertainment employers — from music labels, theatre companies, art galleries, and television and radio broadcasters to production companies for feature films or documentaries, newspapers and reality TV, among many others. It is not intended to be all-encompassing to cover all or complex scenarios but rather to provide an overview of the most common U.S. visa categories.

Many people in the entertainment and media industries are accustomed to working in their home countries as freelancers rather than as employees. Such individuals often prefer, where permitted under the immigration rules, to apply for visas without company sponsorship through the support of an agent. We will describe this as “Visas for Talent.”

Also common within this industry are employees who fall within the highly skilled categories, such as lawyers, accountants and marketing managers. We will describe this as “Visas for Employees.”

Employment-Based Nonimmigrant (Temporary) Visa Categories

Visas for Talent

I visas are an option for those working in the factual arena, covering news and documentary-related topics. With the exception of journalists working for and paid by an overseas branch of a U.S. network, newspaper or other media outlet who seek entry to the U.S. solely to report a U.S. news event for a foreign audience, this visa is solely for representatives of the foreign (non-U.S.) media. Foreign media can include press, radio, film or television, as well as foreign independent production companies, but the visa is limited to those who are essential to the performance of a journalistic function such as reporters, film crews, editors and similar positions. Individuals performing associated or tangential roles, such as set designers, do not qualify for this visa category.

Individuals applying for this type of visa must be seeking to undertake activities that are informational in content and associated with the news. This would include reporting on news or sporting events and factual documentaries (e.g., reporting on the migratory patterns of U.S. wildlife). In contrast, scripted and/or staged events (e.g., reality television) and projects of a commercial or entertainment nature would not be considered informational in content, and so journalists or artists working in these areas would not qualify to apply for this type of visa.

This is the only nonimmigrant work category described here that can be sponsored by either a U.S. employer or a U.S. agent as demonstrated by a suitable written contract and itinerary of proposed U.S. activities or events.

The individual must be able to demonstrate, via evidence of meeting at least (and preferably more than) three of a prescribed set of criteria that establish extraordinary ability in the arts or extraordinary achievement in the motion picture or television industries.

Extraordinary ability refers to those who have a level of distinction with a degree of skill and recognition indicating their renown and prominence in their field.

Extraordinary achievement refers to those who have a degree of skill and recognition above that ordinarily encountered such that the individual is recognised as outstanding, notable or leading in the industry.

As part of the application, a written advisory opinion must ordinarily be obtained from a relevant labor union, management organization and/or peer group attesting to the individual’s ability or achievement and posing no objection to their entry into the United States.

There are no numerical limits on O visas. Visas can be issued for up to three years at a time but may often be limited to the time necessary to accomplish the activity or event(s) in increments of up to one year. Visas can be extended in one-year increments for the same activity/event or, as is more often the case, the individual will typically return to their home country at the end of the engagement and then reapply for a new three-year visa for a new project either with the same or a different employer or agent in the future.

It is possible, subject to certain qualifying criteria, for the essential support personnel of an O-1 visa holder to apply for an O-2 visa in order to be able to accompany them to the United States. The O-2 applicant must provide evidence of their essentiality, critical skills and experience working with the O-1 visa holder in the past. For example, it may be possible to have a prosthetics artist apply for an O-2 visa where substantial elements of filming have taken place overseas and they are needed to travel into the United States with the O-1 visa holder in order to ensure continuity of the production.

This nonimmigrant work category is subdivided into:

1. Members of internationally recognized entertainment groups (P-1B).
2. Performers or groups performing under a Reciprocal Exchange Program (P-2).
3. Artists or entertainers performing as part of a Culturally Unique Program (P-3).

To qualify in the first subcategory, with the exception of circus performers, the group as a whole (rather than individual members) must be internationally recognized and at least 75% of the group members must have had a substantial and sustained working relationship as the group for at least one year.

To qualify in the second subcategory, the applicant must be an artist participating in a government-recognized reciprocal exchange program with skills comparable to those of U.S. artists and entertainers taking part in the program outside the United States.

To qualify in the third subcategory, the applicant must be an artist entering the United States for the purpose of developing, representing, coaching or teaching a unique or traditional ethnic, folk, cultural, musical, theatrical or artistic performance or presentation as part of a cultural event or events to further the understanding or development of the art form.

There are no numerical limits on P visas. Visas can be issued for up to one year at a time but may often be limited to the time necessary to accomplish the activity or event(s). Visas can be extended in one-year increments in order to continue or complete the same activity/event.

It is possible, subject to certain qualifying criteria, for the essential support personnel of a P visa holder to also apply for the same visa in order to be able to accompany the principal if they are integral to the performance and perform services that cannot be readily performed by a U.S. worker (e.g., lighting technicians and stage personnel working on the international tour of a music group).

In addition to using this visa in the same way as employees (described below), there are several subcategories of the B visa that may be available to talent in the media and entertainment industries depending on their individual circumstances, as follows:

• Unpaid amateur athletes and entertainers (or members of an unpaid group of amateur entertainers) performing in a social/charitable context, or as a competitor in a talent show, contest or athletic event.
• Professional entertainers participating in a competition for which the only remuneration is the prize and expenses.
• Professional entertainers participating in a cultural program in the United States sponsored by their sending country, paid by that country and performing in front of a non-paying audience.
• Photographers with no source of U.S. income entering to take still photographs.
• Musicians who will not perform publicly in the United States but are entering the U.S. to use recording facilities to make recordings to be distributed and sold solely outside of the United States.
• Artists, with no U.S. contract or source of income, seeking to enter the country to paint, sculpt, etc.

Visas for Employees

The H-1B visa is one of the most common professional visas for businesses that need to hire professional, qualified non-U.S. citizens. The H-1B visa classification is for specialty occupations, which are occupations that require both:

1. Theoretical and practical application of a body of highly specialized knowledge.
2. Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum requirement for entry into the occupation in the United States.

The foreign national employee must meet the requirements for the position, including having a bachelor’s degree (or its equivalent based on years of work experience) or higher in a field related to the occupation. The employer must also demonstrate that it is offering the prevailing wage for the occupation in the proposed labor market.

For many media and entertainment companies, lawyers, accountants, software designers and project managers are typical H-1B-eligible positions. Some of these types of positions (e.g., lawyers) may require licensure. Trade workers, such as electricians and cameramen, do not qualify for H-1B status. Understanding the limitations of this visa category and its applicability to this industry is key for developing a company’s workforce.

A significant challenge for employers seeking to sponsor an H-1B worker is the annual limit on the number of H-1B visas available. The annual cap is 65,000 new H-1B visas, plus an additional 20,000 H-1B visas for individuals who have graduated with a master’s degree or above from a U.S. university. In recent years, U.S. Citizenship and Immigration Services (USCIS) has imposed a random lottery on all new petitions as a method to fairly determine which petitions get reviewed, as more petitions were submitted than there were available visas. In other words, there is no guarantee in any given year that an employer will be able to secure an H-1B visa for a qualified employee.

If a candidate for a professional position is already working in the U.S. in H-1B status, the new employer may submit an H-1B petition on his or her behalf at any time, bypassing lottery.

Foreign national employees have a maximum of six years of H-1B status available, although that maximum can be exceeded if the employee has begun the green card process. Where possible, employers seeking to hire individuals who already hold H-1B status should determine how many years of H-1B status remain so they can factor strategies regarding the timing of starting the green card process into the hiring decision.

As stated above, an employer must demonstrate that it is offering the prevailing wage in the proposed labor market for the occupation. Therefore, when an H-1B employee moves to a new position or work location, the employer may be required to file an amended H-1B petition prior to the employee changing positions or work locations. When such a proposed change arises, the employer should contact immigration counsel to determine the consequences of the change regarding the employee’s immigration status.

Scrutiny on H-1B petitions has increased dramatically since 2017. Requests for Evidence (RFEs) and even denials have been issued by USCIS at an unprecedented rate, causing processing delays and headaches for businesses that require H-1B visas for professional staff. As of June 2019, the RFE rate on H-1B petitions (whether for first-time or extension petitions) is above 60%.

Employees who are citizens of Chile and Singapore who otherwise qualify under the H-1B standards described above may seek H-1B1 status. Although used infrequently, employers should keep the H-1B1 category in mind for potential Chilean and Singaporean candidates.

Australian citizen professionals who otherwise qualify under the H-1B standards described above may seek E-3 status. Although not used as frequently as the H-1B category, employers should keep the E-3 visa category in mind for potential Australian hires.

The L-1 visa category is intended for individuals working in either a specialized knowledge or managerial/executive capacity abroad for at least 12 months in the previous three years to come to the U.S. to work for an affiliated entity in either a specialized knowledge or managerial/executive capacity.

Media and entertainment companies must demonstrate their employee possesses specialized knowledge and/or sophistication with proprietary processes, systems or applications to qualify for an L-1B specialized knowledge visa. Like H-1Bs, this category has come under scrutiny in recent years.

There are no numerical limits on L-1 visas. For L-1A managers and executives, the total period of authorized employment is seven years (three years of initial validity plus two two-year extensions). For L-1B workers, the total period of authorized employment is five years (three years of initial validity plus one two-year extension).

For U.S. companies that are majority owned and controlled by individuals or a publicly listed company from a country that maintains a treaty of commerce and navigation with the United States, it may be possible for the company to hire individuals of that same nationality into a managerial/executive position if the individual possesses skills essential to the company’s U.S. operation. There must be either engagement in substantial trade (including in services or technology) between the U.S. and the other country by the U.S. company (E-1) or the foreign owners must have made a significant and more than marginal investment into the U.S. company (E-2) for which the individual will be employed in a qualifying position.

There are no numerical limits on E-1/E-2 visas. Length of visa is determined by nationality and longevity of the U.S. company but may be for up to five years in length with the option to apply to extend indefinitely as long as the company, the nature of the position and the individual all continue to meet the qualifications of the visa category. Duration of permitted stay in the United States is typically two years or expiration date of passport, whichever is sooner.

The TN is a visa option for Mexican and Canadian professionals in certain occupational categories that allows for U.S. work authorization. For media and entertainment companies, common TN occupational categories include Accountant and Lawyer.

To qualify in the TN categories of Accountant or Lawyer, the beneficiary must:

• Be a citizen of Canada or Mexico.
• Have a job offer from a U.S. employer.
• If an accountant: Hold a Baccalaureate or Licenciatura degree in a field related to the category or CPA, CA, CGA or CMA.
• If a lawyer: Hold an LL.B., J.D., LL.L., B.C.L. or Licenciatura degree or membership in a state/provincial bar.

The initial period of stay in the U.S. in TN status is up to three years. Individuals who wish to remain in the U.S. beyond the initial three-year period must either file for an extension of stay with USCIS or depart from the U.S. and reapply for TN status. TN extensions of stay are usually granted in three-year increments.

There is no limit on the number of years one can work in TN status, although individuals may receive further questioning from immigration authorities when multiple extensions are filed. There are no limits on the number of new TN visas available in a given fiscal year.

Most foreign students in the United States have F-1 student visas. F-1 students are allowed to work only in very narrow circumstances. F-1 students are generally allowed to work for one year after graduation in Optional Practical Training (OPT). They may work for any employer in OPT as long as the work is closely related to their field of study. Currently, students in STEM fields may seek additional OPT work authorization for an additional 24 months if the employer uses the E-Verify employment verification system.

The B-1 visa is available to foreign nationals for business visits to the United States for a specific and limited period of time. Permissible business activities include, but are not limited to, consulting with business associates, participating in short-term training, attending professional conventions or conferences, or negotiating a contract. The maximum amount of time permitted in B-1 status on any one trip is one year. The B-1 visitor is prohibited from engaging in any hands-on, productive work.

Individuals from certain countries may be eligible to enter the U.S. without a visa (through pre-approval of an online ESTA application).

In recent years, B-1 business visitors have come under scrutiny when seeking admission to the U.S. Customs and Border Protection. Officials are now seeking additional information to demonstrate that the nature of the visit complies with B-1 rules and may request meeting agendas, calendar appointments and other evidence to prove the reason for the visit.

Permanent Residency (Green Card) Process

All of the above nonimmigrant visa categories are temporary. An employee in one of these visa categories may be allowed to work for a few years in the United States; however, if the company wishes to employ the individual beyond the time limit of the nonimmigrant visa category, it must sponsor the employee for permanent residency, commonly known as a green card. Permanent resident status authorizes a foreign national to reside and work in the United States permanently.

The permanent residency process usually takes at least a few years and can take much longer if the employee was born in certain countries such as India or China. Given the limited duration of certain temporary visas as discussed above, employers and individuals should be mindful of this timing, as well as the timing to start the permanent residency process.

Visas for Talent

Typically, the most appropriate long-term immigration option for Talent is likely to be an EB-1-1 immigrant petition in the Extraordinary Ability category. The requirements for this category mirror closely those of the O-1 nonimmigrant visa category described above (3 in 10 requirement), with the key difference that the individual must be able to demonstrate that their extraordinary ability has been sustained over a longer period of time at a level of distinction with a degree of skill and recognition indicating their renown and prominence in their field that has been recognized through sustained national or international acclaim.

This is the only immigrant category described here that does not require a specific offer of employment in the United States and can be self-filed.

Individuals who hold or have held an O-1 visa will not automatically qualify to apply for permanent residency in the EB-1-1 category. In comparison with the O-1, this type of application will be scrutinised more closely by the immigration service for more extensive evidence of their sustained period of acclaim for their level of distinction. The key is to determine when the applicant is close to reaching the peak of their career and attempt to make the application at that time.

The EB-1-1 application process is a two-part process. First, the I-140 petition is filed to explain the requirements for the position and how the individual meets those requirements and can demonstrate their level of extraordinary ability over a sustained period of time at a national or international level.

After I-140 approval, depending on the foreign national’s country of birth, it may take time for a green card quota number to become available. The wait can be as short as a few months or extend to a few years or more. Once a quota number is available, either I-485 adjustment of status applications are filed for the foreign national and immediate family members or immigrant visa applications are filed at the U.S. consular post in their home country. Permanent resident status is granted, and either green cards are issued upon approval of the I-485 applications or immigrant visas are issued upon approval so that the individuals can enter the United States as permanent residents, which will then trigger the production of their green cards to be mailed to them at their U.S. residence.

Visas for Employees

Some temporary visa categories, such as TN and E-1/E-2, do not provide a good platform to seek permanent residency, so it is often necessary to first change the employee’s status to another visa category that that serves as a more effective platform, such as H-1B.

There are generally three steps to the permanent residency process:

1. PERM labor certification.
2. I-140 immigrant visa petition.
3. I-485 adjustment of status application (inside the United States)/immigrant visa application (outside the United States).

The PERM labor certification process requires the employer to advertise and conduct a good faith recruitment effort to see if there are more qualified U.S. applicants available for the position. The employer must also demonstrate that it is offering the prevailing wage for the occupation in the proposed geographic location. The advertising and recruitment must be conducted according to strict requirements.

If PERM is approved, the employer then files an I-140 petition. The I-140 petition process confirms that the foreign national meets the requirements for the position and that the employer can pay the required salary.

After I-140 approval, and as described above, once a quota number is available then either the I-485 adjustment of status applications or the immigrant visa applications can be submitted for the foreign national and immediate family members.

A limited number of foreign nationals employed in the media and entertainment industry may be eligible to skip the PERM labor certification step. Their green card cases start with an I-140 petition, most likely in either the multinational executive/manager category or as an individual with extraordinary ability (see EB-1-1 described above).

As a multinational executive/manager, the foreign national must have been or currently be employed abroad in executive/managerial capacity for at least one of the past three years (or if in the U.S. already, for at least one year in the three-year period before initially coming to the U.S.) and seek to enter the U.S. to provide executive/managerial service to the same employer or to a subsidiary, parent, branch or affiliate. This can be a good option for many.

Hiring, Work Authorization and I-9 Compliance

Hiring the most qualified employees is critical to growing any business. During interviews, companies may be eager to identify key skills and attributes to ascertain “fit.” However, certain questions may run afoul to federal and state antidiscrimination provisions, including questions focused on nationality or immigration status.

According to the Department of Justice’s Immigrant and Employee Rights section, employers may ask the following two questions on job applications and during interviews (and should ask these questions uniformly of all applicants, regardless of citizenship):

• Are you legally authorized to work in the United States?
• Will you now or in the future require sponsorship for employment visa status (e.g., H-1B visa status)?

Work authorization and immigration questions beyond these two questions run the risk of violating the antidiscrimination provisions of the Immigration and Nationality Act. Employers should seek experienced counsel if sponsorship or other work authorization issues arise during an interview or other hiring conversation.

The two questions mentioned above are applicable in the interviewing context. Once an individual has accepted an offer of employment, an employer must verify his or her identity and U.S. work authorization. All U.S. employers have an obligation to confirm the work authorization and identity of all employees hired after November 6, 1986, by properly completing and retaining a Form I-9.

All U.S. employers have three primary obligations when completing a Form I-9 (for any employee, not just employees who are not U.S. citizens or permanent residents):

• Ensure that the I-9 is completed accurately and thoroughly, including ensuring that the employee properly completed Section 1.
• Ensure that the documents presented by the employee relate to that employee.
• Ensure that the documents look reasonably genuine on their face.

In many cases, completing the Form I-9 is a straightforward process. However, even sophisticated employers can get tripped up when employees present expiring work authorization documents or documents that have unique auto-extension rules. Failure to have an accurate, up-to-date and verified Form I-9 on file for every employee can be very costly in the event of an audit.

Media and entertainment companies, especially those with remote workers, workers hired at temporary locations due to filming schedules or similar, hourly employees or employees with temporary work authorization, can face steep fines for failure to follow I-9 regulations. Ensuring that the person or team that handles I-9s completes regular I-9 training and has access to outside counsel for questions is critical. Even the most established companies face challenges in complying with I-9 rules, and when this responsibility may rest, for example, with a production team that also has many other wide-ranging responsibilities, it is critical for them to know who to contact with questions. Employers must not solely rely on a sophisticated electronic I-9 system to solve compliance challenges — the human factor in reviewing and completing I-9s can never be completely automated. Ongoing training, self-audits and staying up to date with Form I-9 (and, where applicable, E-Verify) rules are essential for compliance.

Note that employers are not required to maintain a Form I-9 for any independent contractors or employees who are not physically working in the U.S.

Securing approval to hire foreign nationals in the United States is becoming more difficult. However, with some forethought in recruiting and upfront strategizing about appropriate immigration options, U.S. media and entertainment companies may continue to employ a diverse and talented workforce from around the world.