Immigration Options For Fashion Models
27 June 2016Author: New York Immigration Lawyer Alena Shautsova
The Immigration laws of the United States do not provide for special work visas for fashion models. It means that workers in this category have to compete for limited employment visa slots with all others seeking employment in the US. With visa categories named from A to Z, and no clear legal language stating which one is suitable for a fashion model , it is not uncommon that a model or her agent would get confused about the options.
The reason for this confusion is that when the lawmakers wrote the laws for foreign workers they classified jobs into categories assigning entertainment workers and performers, including athletes and celebrities, into a P Category, and business related jobs, such as IT related positions, into the H-1B category. As surprising as it may be, a position of a fashion model is viewed by the Immigration authorities as one related to business and not arts. Many people criticize this approach but actuality it makes sense from a legal standpoint. The lawmakers concluded that fashion models help to increase business by demonstrating clothes, and as such, they are “business workers.”
There are two main options a fashion model may choose for herself. One is an H1B visa, and another one is an O visa.
An H1B option comes with certain rather serious restrictions, but has its advantages. First, a fashion model applying for an H1B category has to be petitioned by an employer. An agent who is booking appointments and collects fees is not considered to be an “employer” for Immigration purposes. Second, there is a specified time of the year when an H1B petition may be filed: It is April 1, of the year prior to the fiscal year when the model can start her work. It means that a model in H1B category has to submit her documents (or her employer has to do it, to be correct) no earlier than April 1 (let’s say 2016), to start working no earlier than October 1, (2016). The H1B option for models does not require them to possess specific education, but a model has to be of “distinguished merit and ability.” The H-1B visa is held to a higher standard for fashion models than any other H-1B foreign worker. But do not get discouraged, even with these higher standards, a fashion model is almost twice as likely to be approved for an H-1B than a tech- savvy super genius. Finally, an employer sponsoring a model, has to obtain a prevailing wage determination and certify that the model’s wagers would not be lower than the minimum determined by Department of Labor. The average prevailing wage determination for a fashion model in the US would be for $30K-$45K per year, a relatively low threshold to meet. The negatives of an H1B option is that it comes with a “quota” and a 6 year-limitation or cap.
A bonus: H-1B visas also come with A Path to Citizenship.
An O-1A visa is the second most popular option for a fashion model to enter the US. However, the disadvantage of this process is that a model has to correspond to a much higher standard of “extraordinary persons in business.” The benefits of this visa however are far superior to that of an H-1B as there is no cap or quota on the O Category visa. To put it into perspective for those unfamiliar with H-1B petitions, the H1B quota in this 2016 year was reached 5 days after opening the application process on April 1, 2016. Plus , the number of petitions filed exceeded the number of allocated quotas and all submitted petitions had to participate in a lottery. So, the fact that one submitted documents on April 1 did not “guarantee” even consideration of the petition by USCIS.
An O visa has another advantage: there is no 6 year-limitation period a fashion model is subject to, like with H1B option.
Finally, for those models who come to expos, or meet with a perspective employer or agent, a B business visa might be a good option with a subsequent change of status where applicable.