Originally published on The Fashion Law, April 11, 2017
Foreign fashion designers, stylists, photographers, models, and others working professionally in the fashion industry may find themselves in a bind if they are offered work in the U.S. No matter their level of esteem within the industry, all international models need to obtain the proper type of visa in order to work in the U.S. – even if just for New York Fashion Week.
Similarly, fashion professionals – such as non-American designers taking the helm of a U.S.-based brand (à la Belgian design force Raf Simons, who recently took the reigns at Calvin Klein) – cannot do so without the proper employment authorization. So, what are the options?
The Current Visa System
While there may be a few options depending on a person’s background and experience. The H-1B visa is a popular option, particularly for models of distinguished merit and ability. This type of visa does not come without its downsides; only 65,000 are granted each year to non-master’s degree holders and they are highly coveted. In 2013, for instance, the U.S. government announced that within the first five days of the filing period, it had received upwards of 124,000 petitions for the 65,000 H-1B slots. As such, the timing of filing itself a very important factor in determining whether or not the H-1B is even an option.
The O-1 extraordinary ability visa is another one to consider. The O-1 visa is noteworthy has it allows for individuals to freelance for multiple employers or work for just one employer. Moreover, an annual limit does not exist for the number of O-1 visas issued each year.
While the “Extraordinary Ability” standard may seem like a particularly high bar to meet, the immigration regulations provide a formulaic approach to how these petitions are evaluated and adjudicated. If you have received or been nominated for significant national or international awards or prizes in the particular field, such as an Academy Award, Emmy, Grammy or Director’s Guild Award then you are in a really good position to apply for the O-1. If you haven’t reached this level of acclaim, then you need to submit evidence of at least (3) three of the following:
• Performed and will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements;
• Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications;
• 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;
• A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or standing in the field, box office receipts, motion picture or television ratings and other occupational achievements reported in trade journals, major newspapers or other publications;
• Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the beneficiary is engaged, with the testimonials clearly indicating the author’s authority, expertise and knowledge of the beneficiary’s achievements; and/or
• A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence.
While you cannot self-sponsor for the O-1 visa, if you have your own company – an entity that is separate from yourself – your company may be able to sponsor you, assuming that you meet certain additional criteria. So, if you want to be considered for the O-1 visa, get those portfolios in order, get publicity, and get members of the fashion elite to write letters on your behalf. With the right approach, it might not be long before you are on your way to the U.S., visa in hand.
The Industry’s Push for Visa Reform
The Council of Fashion Designers of America and FWD.us – the latter of which describes itself as an organization started by key leaders in the tech community to promote policies to keep the United States and its citizens competitive in a global economy—including comprehensive immigration reform and education reform – released a white paper this week to share the results of a fashion-industry survey they conducted on immigration policies and their impact. Among the top concerns of those who took part in the survey: Attracting and retaining the best talent, a task made more difficult by the current immigration policy.
As noted by Vogue, “Both the CFDA and FWD.us have proposed changes to current visa laws to help transplants. Their plans include creating a start-up visa for foreign-born business leaders, expanding and reforming student visas, and putting a process in place for undocumented immigrants to earn legal status after passing a background check.”
The publication noted that some of the top takeaways from the CFDA’s report, include:
1) The H-1B visa cap – which limited the number of visas issued within this category per year – “has hit the fashion industry hard.” The cap makes it extremely difficult for employers to hire long-term workers in specialized fields such as fashion and design.
2) The current “outdated” visa rules are hurting creatives. “The vague, outdated rules don’t account for the many different creative fields people work in today—including fashion—nor do they align with specific skill sets.”
3) Legal fees remain a major deterrent. “In the CFDA and FWD.us’s survey, 68 percent of employers said that they had spent between $5,000 and $9,999 per employee on legal expenses related to the visa process. The remaining 32 percent spent over $10,000—a prohibitive cost that has kept many brands from investing in international talent.”
Nadia Zaidi is an immigration lawyer based in New York. Her practice includes assisting fashion professionals and creatives with a variety of visa types, including the O-1, P-1, and H-1B, among others.