U.S.A. Immigration Guide for Canadian Actors and Members of the Entertainment Industry

U.S.A. VISA GUIDE FOR CANADIAN ACTORS AND MEMBERS OF THE ENTERTAINMENT INDUSTRY

An actor may not file a non-immigrant visa "petition" on his/her own behalf. This task must be done by your "sponsor" (called your "petitioner" ), that is, the employer, agent or other sponsor located in the United States -- a person, corporation or entity with a U.S. address and an IRS tax number.

The visa petition must include evidence to establish to the satisfaction of U.S. Immigration officials that:

1. The beneficiary will perform in the United States

2. The beneficiary meets the standards that apply to the specific visa category; and

3. The beneficiary's performance is of "distinction" or "recognized internationally" as "culturally unique."

Additional supporting documentation:

All documents showing the nature and terms of the performance, including a copy of the contract, the itinerary with exact dates and locations (venues), local advertisements for the performance(s), etc.; all documents that provide evidence that the beneficiary meets the applicable standards (see "Visa Classifications for Performing Artists," below); and personal information of beneficiary, including date and place of birth, citizenship status, current residence, and passport number and expiration date. a written advisory opinion from a U.S. labor union (see "Consultation Requirement," below); and a Petition for a Nonimmigrant Worker (Form I-129) with related O and P Supplement from the nearest regional USINS Center in the United States.

The completed petition, support documentation and appropriate fees (see "Visa Classifications for Performing Artists" and "Basic and Supplementary Fees," below) should be filed by the petitioner up to six months, and never less than 45 days, before the scheduled date of the performance. It will be filed at the USINS Center with jurisdiction over the location of the event. In the event that the tour involves performances in more than one location, the petition must be submitted to the USINS Center with jurisdiction over the location of the petitioner.

The petitioner should file the petition as early as possible. Even cases involving only routine processing require anywhere from 15 to 30 days (or longer) to be approved. After receiving the USINS approval notice from your U.S. petitioner, a Canadian citizen may apply at a U.S. port of entry, with the I-797 Notice of Approval from the USINS, and proof of Canadian citizenship. A new 15 day "Premium Processing" has recently been instituted by the Immigration Service for O and P non-immigrant visas.


Support Documentation: Explanations and Helpful Hints


O and P visa petitions must contain substantial supporting documentation of evidence of the beneficiary's accomplishments and artistic ability. The visa classifications for performing artists listed below indicate the customary types of evidence required for foreigners who wish to perform in the United States. Be sure to provide evidence of your credentials as specified under the visa classification applicable to you. Additional, unlisted evidence may also be submitted, if you feel such evidence demonstrates your accomplishments and artistic ability and is comparable to the types of proof specified. As are all governments, the United States government is responsible for ensuring and protecting jobs for its work force. United States Immigration law requires that your past performances meet specific regulatory criteria to qualify for the various visa classifications available to performers. Immigration officials must make sure that you meet the standards that apply to the visa classification you seek. In cases where there is a strike or a lockout in the United States involving artists in your category, there may be a stoppage of visas for foreign replacements. To assist them in evaluating the merit of your performance and its impact on working conditions, U.S. Immigration officers are required to obtain the opinions of U.S. labor unions (e.g., the American Federation of Musicians (AFM), the Screen Actors Guild, the Directors Guild, etc.). Clearly, this requirement is to your disadvantage (as it was intended to be) unless you are renowned in your particular field. Do not be overly concerned, however, since these opinions are only advisory and visa applications can be approved without the support of labor unions provided that you supply countervailing documentation. When a motion picture or television production is involved, a second consultation from a management association is required .

Remember that you can enhance your application and offset the potential impact of an adverse union opinion if you submit "favorable" opinions (i.e., letters of recommendation) from recognized professional U.S. arts associations, management organizations or individual experts in your particular artistic field. Written advisory opinions from such non-labor sources assist U.S. Immigration officers, who are not always artistically inclined, to evaluate the merit of your ability. When requesting an advisory opinion, don't be modest. Flaunt your accomplishments and artistic qualities. If you are relatively unknown to American audiences, focus on enhancing your petition by submitting local reviews, articles or other materials that attest to your talent and the quality of your performances. Furthermore, if you belong to an established Canadian entertainment group and have yet to enter the American market due to certain factors that you feel are beyond your control, you may consider requesting a special waiver that relaxes t

isa Classifications for Performing Artists

O-1 Individual Artist or Entertainer with a Demonstrated Record of Extraordinary Ability or Achievement

You qualify for an O-1 visa if you have received or been nominated for a significant national or international award such as an Academy Award, an Emmy, a Grammy or a Directors Guild Award, or if you have documented evidence (critical reviews, publication releases, playbills, contracts, etc.) of at least three of the following accomplishments. You have:



1. performed, or will perform, a lead or starring role in a production or event having a distinguished reputation;

2. achieved national or international recognition;

3. performed a lead, starring or critical role for organizations that have a distinguished reputation;

4. achieved major commercial or critical success;

5. received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field; or 6. commanded, or now command, a high salary or other substantial remuneration for services in relation to others in the field.

Note that O-1 visas are not only for principal creators and performers, but also for other essential persons who have significant creative input or responsibilities, such as directors; set, lighting and sound designers; choreographers; chorologists; conductors; orchestrators; musical language or other coaches; arrangers; musical supervisors; costume designers; make-up artists; and animal trainers.

An O-1 visa is approved for up to a maximum of three years for a specific performance, film shoot or tour. Extensions for continuing or completing the same activity must be requested on a new I-129 Form and may be approved in one-year increments. Moreover, there is a special exception for work involving motion picture or television production, where significant production work (including pre- and post-production) is both inside and outside the United States.

O-2 Performer(s) or Essential Support Personnel Accompanying the O-1 Performer of Extraordinary Ability or Achievement

You qualify for an O-2 visa if you do not have a lead, starring or critical creative role, but are nonetheless an integral part of the performance, motion picture or television production. You may also be "essential support personnel" of the 0-1 alien performer. You must submit documented evidence demonstrating that you possess "critical skills and experience" based on a long-standing working relationship with the O-1 artist or perform an essential role that cannot be readily performed by other persons .

Note that personnel accompanying performers include back-stage assistants, or essential support personnel such as stage technicians and others who may not qualify for O-1 visas individually. An O-2 visa petition may include more than one name. The application must be made on a separate petition form from the one used to request the O-1 visa, and it must be submitted to USINS in conjunction with the O-1 visa. The duration of the visa is up to a maximum of three years for the event, specific performance, film shoot or tour. Extensions for continuing or completing the same activity must be requested on a new I-129 Form and may be approved in one-year increments.

P-1 Member of an Internationally Recognized Entertainment Group and Essential Support Personnel

You qualify for a P-1 visa if you are a member of an entertainment group that has received international recognition. You must submit documented evidence that demonstrates "international recognition" along the same lines used to demonstrate extraordinary ability (distinction) or achievement for O-1 individual performers (i.e., documented evidence of at least three significant accomplishments).

You must also submit a written statement listing all the members in your entertainment group and the exact dates during which each member has been employed by the group on a regular basis. As a general rule, 75 percent of your members must have been with the group for at least one year (see "One-Year Relationship Requirement" in the paragraph on special rules, below). If you are an essential support person to the P-1 or P-3 entertainment group, you must submit a separate petition, together with documented evidence establishing your "essential role, critical skills and experience" in association with the group.

Note that essential support visas must be requested separately from the visas for the main performer(s), but can be approved only in conjunction with the visas for the main performer(s). There is less of an emphasis on the long-standing relationship between supporter and performer than in the O-2 context.

There are some special rules applicable to P-1 entry. Waiver from International Recognition Requirement

You can request a waiver if your group has an outstanding national reputation, and you can demonstrate that certain factors, such as limited access to the news media or geography, have hindered the attainment of recognition outside Canada. This provision is of specific benefit to Canadian performers.

One-Year Relationship Requirement

You must provide evidence that your entertainment group has been established with 75 percent of its current members for at least one year. However, this requirement may be waived for members who:



1. replace an essential member of the group due to illness or other unanticipated and exigent circumstances;

2. augment the group by performing a critical role; or

3. When requesting a waiver from either the international recognition or one-year relationship requirement, be sure to support your claim with documented evidence, even written expert opinions if necessary.

A P-1 visa is approved for up to a maximum of one year for a specific performance or tour. Extensions for continuing or completing the same activity must be requested on a new I-129 Form and may be approved in one-year increments.

P-2 Participant in a Reciprocal Exchange Program Between a Canadian and U.S. Organization and its (or their) Essential Support Personnel from the American Federation of Musicians or Actors Equity

You qualify for a P-2 visa if you are an individual performing artist or member of an entertainment group participating in a temporary exchange program between a Canadian and U.S. organization for artists and entertainers (e.g., the American Federation of Musicians and the Actors Equity Association exchange between Canadian and American chapters). The American Federation of Musicians will be the petitioner, and you should contact the Toronto office for details. Actors Equity will provide the necessary exchange documentation for your presenter to submit. You must submit the following documentation:

1. a copy of the formal reciprocal exchange agreement between the U.S. and Canadian organizations;

2. a statement from your particular U.S. sponsoring organization describing the nature of the exchange;

3. evidence that the appropriate U.S. labor organization was informed or has concurred with the reciprocal exchange of U.S. and Canadian artists (see "Consultation Requirement," below); and

4. evidence that the artists and entertainers subject to the exchange agreement possess comparable skills and that the terms and conditions of employment are similar.

If you are an essential support person for the P-2 performer or group, you must submit documented evidence establishing your "essential role, critical skills and experience" in association with the main performer or group (see the section regarding 0-2 accompanying performers, above).

Note that requests for support personnel visas must be filed on a separate form, but submitted in conjunction with the visa(s) for the main performer(s). A P-2 visa is approved for up to a maximum of one year for a specific performance or tour. Extensions for completing the same activity must be requested on a new I-129 Form and may be approved in one-year increments. Note that the U.S. union may act as the petitioner in P-2 cases.

P-3 Culturally Unique Performers, Performing Groups, Teachers or Coaches and Essential Support Personnel

You qualify for a P-3 visa if you are an individual performing artist or member of an entertainment group coming to perform, teach or coach under a commercial or non-commercial "culturally unique" program. You must submit documented evidence to confirm that you (or your group):

1. have authentic skills in performing, teaching or coaching a unique or traditional art form, as shown by testimonials from recognized experts; or

2. perform culturally unique programs, as shown by published reviews; and

3. will participate only in culturally unique events; and

4. have an appropriate consultation from a labor source.

If you are an essential support person to the P-3 performer or group, you must submit documented evidence establishing your "essential role, critical skills and experience" in association with the main performer or group (see the section regarding 0-2 accompanying performers, above). Note that essential support visas must be requested separately from visas for the main performer(s) but can be approved only in conjunction with the visas for the main performer(s) A P-3 visa is approved for up to a maximum of one year for a specific performance or tour. Extensions for continuing or completing the same activity must be requested on a new I-129 Form and may be approved in one-year increments.

O-3 and P-4 Accompanying Dependents

The spouse or child accompanying an O-1, O-2, P-1, P-2 or P-3 performing artist or essential support person qualifies for an O-3 or P-4 visa (depending on the related performer's visa classification). Accompanying dependents need only provide evidence of their relationship to the principal performer at the time of application for the artist's status or visa. (If your dependents are not Canadian citizens and require visas to enter the United States, application should be made to the U.S. Embassy or U.S. consulates in Canada.) The initial O-3 or P-4 approval period corresponds to that of the principal. However, until further notice, extensions must be requested on an I-539 Form (not an I-129 Form) and may be approved in one-year increments, in conjunction with the extension granted to the related performer.

H-2B Musicians to be Employed Within 50 Miles of the Canadian Border

If you are going to perform within 50 miles of the Canada-U.S. border, you have the option of applying under a less stringent visa classification rather than under the various O and P categories. The H-2B classification is intended for temporary workers entering the United States "to engage in non-agricultural employment which is seasonal, intermittent, to meet a peak load or need, or a one-time occurrence."

However, the U.S. Department of Labor made special allowances for Canadian musicians by pre-certifying that qualified persons are unavailable along the Canada-U.S. border, and that the admission of Canadian musicians would not adversely affect the wages and working conditions of Americans who are similarly employed. Just as for the other visa classifications, the petition must be filed by your presenter in the United States using Form I-129 and must be accompanied by documented evidence of your standing as a musician. Your presenter should: 1. complete and clearly indicate on the I-129 Form that you are requesting the H-2B classification;

2. fill out and include the related H supplement; and

3. submit documented evidence (that you should furnish to your presenter) along with your petition outlining your, or your group's, credentials and all other pertinent information (e.g., copy of the contract, itinerary, advertisements, list of band members, etc.).



No consultation is required for this H-2B category.

The H-2B classification is ideal for promising Canadian musicians (including essential support personnel) who wish to showcase their talent in the United States but do not yet qualify for O or P entry. Note, however, that only 66,000 individual H-2B visas are granted per fiscal year, so you should apply as early as possible. Furthermore, H-2B admission is limited to 30 days. If your services are required for a longer period, your employer must file with the U.S. Department of Labor for the required labor certification before filing the petition.

Consultation Requirement For reasons mentioned earlier, before approving any visa for a foreign performing artist or entertainment group, the USINS consults with American labor unions representing your occupational peers. To fulfill the consultation requirement and speed up the processing time for your visa, your presenter should submit with all O and P visa petitions a written opinion or no-objection letter from the appropriate U.S. union. The only exceptions are as follows: 1. The consultation requirement is waived for O-1 visas if, for the rendering of similar services, you have already submitted a written advisory opinion or if prior consultation has taken place within the last two years. 2. If you are applying for an O-1 or O-2 visa to work on a motion picture or television production, you will need a written advisory opinion from an American labor union and from the Alliance of Motion Picture and Television Producers (AMPTP). 3. If it is established that no such labor union exists, the USINS will render a decision based on the evidence already on record. In dire emergency only, and one not of your own doing, you might consider requesting the involved USINS Service Center to obtain the necessary labor consultations. The Vermont Service Center may be reached in advance by telephone; the Northern and California Service Centers require you to take your chances by mail. Do not rely on this procedure if at all possible. Remember that leaving the USINS with the task of consulting the union can delay the processing time of your visa. It also limits the control you have over the profile of your application. Obtaining the consultation yourself, in advance, enables you to rebut any negative opinions from the union by providing more favorable opinions from distinguished experts or non-union organizations.

Specific Labor Unions For instrumental musicians: American Federation of Musicians 1501 Broadway Suite 600 New York, NY 10036 Tel.: (212) 869-1330 Fax: (212) 764-6134

American Federation of Musicians of the U.S. and Canada 75 The Donway West Suite 1010 Don Mills, ON M3C 2E9 Tel.: (416) 391-5161 Fax: (416) 391-5165

For performers in opera, classical concerts, choral concerts, dance and ballet: The American Guild of Musical Artists (AFL-CIO) 1727 Broadway New York, NY 10019-5284 Tel.: (212) 265-3687 Fax: (212) 262-9088

For performers and stage managers in live format presentations: Actors Equity Association 165 West 46th Street New York, NY 10036 Tel.: (212) 869-8530 Fax: (212) 719-9815

Canadian Actors Equity Association 44 Victoria Street 12th Floor Toronto, ON M5C 3C4 Tel.: (416) 867-9165 Fax: (416) 867-9246

For performers in the film and audio/visual electronic media: Alliance of Canadian Cinema, Television & Radio Artists 2239 Yonge Street Toronto, ON M4S 2B5 Tel.: (416) 489-1311 Fax: (416) 489-1435

Screen Actors Guild 5757 Wilshire Blvd. Los Angeles, CA 90036 Tel.: (213) 954-1600 Fax: (213) 549-6801

American Federation of Television & Radio Artists 260 Madison Avenue New York, NY 10016 Tel.: (212) 532-0800 Fax: (212) 532-2242

Screen Actors Guild 1515 Broadway New York, NY 10036 Tel.: (212) 944-1030 Fax: (212) 944-6774

For directors of cinematography, technical and craft personnel: Association of Canadian Film Craftspeople 65 Heward Avenue Suite 105 Toronto, ON M4M 2T5 Tel.: (416) 462-0211 Fax: (416) 462-3248

International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators 1515 Broadway New York, NY 10036 Tel.: (212) 730-1770 Fax: (212) 921-7699 or (212) 730-7809

International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators 7715 Sunset Blvd. Hollywood, CA 90046 Tel.: (213) 876-4770 Fax: (213) 876-0861

International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada c/o CLC Office 258 Adelaide Street East Suite 403 Toronto, ON M5A 1N1 Tel.: (416) 362-3569 Fax: (416) 362-3483

International Brotherhood of Electrical Workers 1125 15th Street, N.W. Washington, DC 20005 Tel.: (202) 833-700 Fax: (202) 467-6316

International Brotherhood of Electrical Workers 45 Sheppard Avenue East Suite 401 Willowdale, ON M2N 5Y1 Tel.: (416) 226-5155 Fax: (416) 226-1492

National Association of Broadcast Employees & Technicians 7101 Wisconsin Avenue Bethesda, MA 20814

For writers in the film and audio/visual electronic media: 1. ) For productions east of the Mississippi River: Writers Guild of America-East 555 West 57th Street Suite 1230 New York, NY 10019 Tel.: (212) 757-7800 Fax: (212) 582-1909

2. ) For productions west of the Mississippi River: Writers Guild of America-West 8955 Beverly Blvd. West Hollywood, CA 90048 Tel.: (310) 550-1000 Fax: (310) 550-8185

For management consultations for motion picture and television productions: Alliance of Motion Picture and Television Producers 15503 Ventura Blvd. Encino, CA 91436 Tel.: (818) 995-3600 Fax: (818) 382-1793

For more information about U.S.A. Immigration Laws for Actors and Members of the Entertainment Industry contact: Mark Carmel, Attorney at Law, 366 North Broadway, Suite 410, Jericho, New York 11753 Tel: (516) 220-6149, Fax: (516) 935-2011
Canadian Branch Office: 5650 Yonge Street, Suite 1500, North York, Ontario M2M 4G3 Tel: (416) 226-7253, Cell: (416) 818-5201, Fax: (416) 512-2230. E-Mail: uslawyer@uslawyer.com