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Sports & Entertainment Immigration - Green Cards! Green Cards! Green Cards!

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Sports & Entertainment Immigration - Green Cards! Green Cards! Green Cards!

This course will discuss the various green card options available to artists, entertainers, and athletes. We will provide a broad overview of business immigration and take a deep dive into sports and entertainment immigration options, including visa options and paths to permanent residency. This course will also discuss strategies for how to choose the right path to a green card for your client.

Transcript

Hello and welcome. This is sports and entertainment immigration. But specifically, we're going to be talking about green cards. As you see here. I have it listed thrice with three exclamation points. It's that exciting it's that interesting, it is going to be that involved for all of you watching full stop caveat sports and entertainment immigration is kind of a unique little sidestep of immigration. Not many people really know about it, but if you ever hear about so-and-so missed training camp or they couldn't make a tour, they didn't make their concert for whatever reason, then you've heard about sports and entertainment, immigration, and that's exactly what it relates to. But specifically here, for our purposes, we're going to be talking about green cards. Green cards. Green cards. Who am I, though? And why am I even here? Well, I am an attorney who specializes in this area. I also specialize in global migration. Migration as well. Specifically, what that means is that I take people and I move them around the world. I help them go in and out of the US. I help them go to Western Europe and elsewhere and get situated all around the world. That being said, I work with international artists, entertainers, athletes, entrepreneurs, as well as companies and management and all different kinds of organizations and establishments advising them on both. A combination of US based immigration, global migration and internal oversight methods. What are internal oversight methods such as I-9, workforce compliance, and workplace compliance? That's what I come into. In addition, I am a member of the American Immigration Lawyers Association, where I serve as a peer reviewer for my colleagues on the Ala Board of Publications. I've been on that committee for several years now. I also serve on several other national committees, and I've most recently been ranked in super lawyers since 2015 or so and best lawyers ones to watch Chambers USA's up and coming attorneys in the area of immigration law and so on and so forth. And so that is why I'm here, is not to necessarily toot my own horn, as we say. It is just so that, you know, I do know a thing or two about a thing or two when it comes to this stuff. So that is why we're talking about it. That is my picture, though. I do have a full beard at this point in time and am older and fatter, but that is a relatively recent picture. It's the most recent picture I have, actually. So I'm stick with it nonetheless. Moving on. Topic for discussion, we're going to talk about business integration. What exactly is business integration? Because a lot of people don't know. A lot of people don't even know what this is. So I'm going to touch on it briefly. It's going to be relatively quick. I'm not going to spend too much time on what is business integration, but we're going to talk about it a bit. Then there's sports and entertainment integration. What is that? Which visa classifications are appropriate here? We're going to spend a little bit more time, talk a little bit more all while I'm watching the clock to try to make sure I don't run over or do anything foolish and don't and shortest on time. And then we're going to talk about the three main categories that are of interest, both to me and should be of interest to you as well. Specifically, the reason being that they are the most pronounced and most prominent, I'll say, within the arts and entertainment fields, specifically within sports and entertainment. They are the one for individuals of extraordinary ability. They are the one for outstanding researchers and professors. And lastly, we have the Eb2 National Interest Waiver. You are probably asking yourself, what on earth is this EB alphabet soup nonsense? We'll discuss that. We'll figure it out. It'll be great. Don't worry about it for now, but we will discuss it. That's the only reason I'm saying don't worry about it. I don't ever like saying Don't worry without knowing exactly why you shouldn't worry. Because in my experience, whenever someone tells me not to worry, I always find that it ends up creating a problem. And in the short run or long run, I should have worried quite a bit. That being said, that's that. Then we'll conclude with a basic summary. And in between there I'm going to touch on some other ancillary parts that aren't here. So I hope you're listening or taking notes or pretending to listen, as many, many of us do when we're doing these deals. What's important here to note is there are a few things that are not listed on this topic. For discussion page specifically, they are the visa bulleted. The Visa bulletin is a very opaque, draconian kind of way that immigration goes about allocating visa points and visa stamps and who can and cannot apply for a green card and so on and so forth. But nonetheless, we will discuss it. It will be great. It will be delightful, and we shall continue from there. So that being said, without further ado, let's move on now. Business, immigration, what is it? Well, to be very blunt, it is quite simply the ability and the need to have someone enter the United States in order to work here. Now, you might be wondering what on earth that is and what that consists of. Well, they could be coming in to work for a company as an employee. They could be coming into the US to develop a business that's already in existence or they could be coming into the US to expand a business or its opportunities. Now you might be saying yes, but how is an athlete working? Well, that's stupid. Okay, there are stupid questions and so you should know that there are stupid questions. Ask them from time to time. I'm sure you all have asked them, so no harm in asking it. But I pointed out here because it's important to note an athlete works for the team. They also work to further the economy. Okay. So that being said, nonetheless, then there is there are also different classifications for different purposes. Now, you think about this in terms of what the individual is going to be doing. Are they going to be performing on stage or in front of the camera or are they going to be acting or are they going to be perfecting a craft behind the scenes, maybe a set decorator or a production designer? Are they going to be competing professionally, say, at home run derby or, you know. Horse racing and various field trips and things quite white growing, which is a real sport. In case you were wondering, it isn't in fact a real sport. There are a few other very quirky sports around the world. Very, very fun to note. Or ping pong. Maybe someone's going to poach a ping pong match or coach a team in competing in a ping pong match. You don't coach a match, right? Then there's also competing in an amateur production or event, which would be different. Those individuals are most likely not going to be applying for a green card, but a coach of an amateur production or event. Right. So you figure an NCAA coach would certainly qualify for a green card given the nature and scope of what we're looking at, assuming that they meet the requirements. So there are you know, there is some overlap here, then there's also the need to build or develop a US office for a non US entity that's open up a new a new workspace, a new place of operations. Then there's also creating a new company or collective right, that could work, perhaps study, Probably not. But I put it here because. Why not? Plenty of folks ask about it. They'll say, My son got a scholarship to go to, you know, Florida Tech to play golf. Would that work? Does he does he qualify for a green card or does he qualify for a work visa? And the answer is most likely no, because the person is going to be studying. But if they're studying part time and working full time, then maybe maybe the person is going to be a golf pro or coach or, you know, assistant coach or something like that. But nonetheless, that is business integration. It is the need. To have someone in the state to perform services or some base of operations. Then we have sports and entertainment. Immigration. What is it? It is specifically business immigration that relates to the sports and entertainment industry or industries, rather. Okay. Now that can include. Entrepreneurship that can include start up maybe creating a record label that can be include being a musician. It can include a whole host of other things beyond the scope and beyond the realm of what exactly you might anticipate to be sports and entertainment. It could be an agency. It could be a sports agency. It could be a training facility. It could be a coaching facility. It could be all sorts of things. And then the question becomes which visas are appropriate? And while I'm noting here, we're not going to be discussing these visas, I wanted to at least include them here so that it kind of just peppers your brain with some memory of what the different visas are that could exist. Right. And so what we have here are B1, B2 visas. Those are for business and tourist visas that for individuals coming to the US to either perform in amateur competitions, maybe they're going to travel or or meet with different professionals and have negotiations or conferences, things like that. Then there's the E1 E2 that's for treaty traders and investors respectively. That's for individuals who are coming into the US to open up a base of operations and make it grow. Make it expand. Okay. Then there is the F with an and student visa and work authorizations also respectively. That could work perhaps for the student who gets a scholarship and is going to be studying. But also they want to work part time in line with that course of study. And so they go from there. Then there is the H-1b category. Now, interestingly enough, while most people assume that H-1b work strictly for people in tech or sciences and those areas, that's not entirely true, because H-1b also work for people who are researchers and scholars and individuals who might be conducting research on behalf of an entertainment team or an entertainment group or a sports team. Apologies, likewise. Models also fall under the H-1b category, interestingly enough. And so you might be wondering, well, how did that happen? I'm not going to dive into the congressional history, but that is one of the things that does happen. J Visas for student exchange programs or professional exchange. You know, a researcher qualifies for a J. So, for instance, you might have a physician who's joining a sports team. But first they're coming into the States to engage in further study at, say, Harvard before they join the Boston Celtics. Well, that that might very well look like a J visa that starts for them and then you go from there. The L1, A and B is for intra company transferees, That is individuals who are coming into the states in order to build things out and make a new base of operations or expand a base of operations, or for individuals who have expertise, a certain very particular kind of expertise should say, then you have. M visas. M As in Michael, my name for vocational school studies. So you might have an actor who comes into the States to hone her his craft. And they and they attend a a school with an M visa. Then you have the O visa that is commonly known as the artist visa. That is the one that basically is the catch all for sports and entertainment industry professionals. It works very well. Again, we won't discuss it here, but that is kind of the preeminent visa. Then there is also the P visa, which is for individuals, certain individuals and groups with significant recognition. Now, worth noting, this is kind of like the immediate close and time close in line runner up to the O visa. I pointed out here because it's worth noting and there's no harm in doing that, but if you ever see folks on tour from overseas, odds are they got a P visa. If you see an athlete hockey player, odds are they got a P visa because it's valid for the duration of the contract and it's going to make sense for them. But again, if a more long term, more static presences within the US, you typically would look to the O visa. Now what we're going to be discussing here though, in the preceding and 16 slides or 15 slides or however many come after this because don't have a numbered foolish me nonetheless our permanent residency path. Now you might be asking what isn't that a green card? You have to think of the green card in terms of two phases. Phase one is the applicant is the petition, and it can be a self petition in many instances to USCIS, which says, Do I qualify to apply for a green card? Okay, that's the first step. Once that's approved, in most cases, once that's approved, then you move to the second phase, which is the actual application for a green card. Okay. So this is kind of a bureaucratic dichotomy, but it's important to note specifically because as we go further down the line, what you'll see is that. Sometimes you might file phase one and it gets approved, but unfortunately there is no time for you or that individual to be able to apply for a green card because their number is not current. What that means is that they went into a bakery and I'll say this, you know, sort of metaphor again. They went into a bakery, pulled a tab, got a number, say number 47. But immigration was only at 35. And they were waiting and waiting and waiting. But when they go back, look, immigration still at number 35. So there's no movement or worse. Immigration is now at 22 in this bakery of immigration, which doesn't really make much sense, but it does happen. And again, I'll discuss it more later on when we discuss the Visa bulletin and have two examples of that or one example of that in real time. So you can see as of the date of recording of this, since we have both the July and August visa bulletins. But nonetheless, to the point is it's the process for a green card is broken out into two phases. Phase one is the petition. Do I qualify to apply for a green card? Phase two is the actual application for the green card. Okay. And therein we have three different categories. The EB one, which is for individuals of extraordinary ability. You can think of it as a heightened, enlightened version of an AU visa. It's much it's a much higher standard. It's far more difficult to obtain, but it's it's a fantastic path if available. Then you have the EB one, which is for outstanding researchers and professors. And again, like I said before, this could potentially be applicable to folks within sports and entertainment. Notably, if somebody's coming in doing significant research in the field in Say Something, sports medicine perhaps, or sports rehab specifically for a hockey player or other kinds of athletes. Maybe you have a golf um, maybe you have a doctor who specializes in back injuries and spinal injuries and things of that nature. And so they are fundamental to golf and that's what they research and all that kind of stuff. These are all key aspects that are important and worth noting and worth considering, which is why I put them here, not necessarily because it's going to be the fundamental best path for you, but rather because it is most likely going to be a viable path or potential path that is worth considering. Then you have the EB two National interest waiver, the Ev2, and is great because it is a lesser standard. And again, we'll discuss this in more detail momentarily, but it is a lesser standard than the EB one. Eh. It also allows an individual to self petition and basically what it's saying is that either the individual has an advanced degree or that they work that sorry or that they have exceptional ability. Right now, exceptional ability is not to be confused with extraordinary ability. And if you're discerning, you might very well be looking at this saying, yes, but Michael, they're synonyms, to which I would reply agreed, except for the fact that in immigration parlance they're not for our purposes here in terms of permanent residency path, if that doesn't make any sense. Good. It shouldn't make any sense, but that's just the reality of what it is. On to the next line. Okay. Entertainment, immigration, permanent residency. Well, what is this permanent residency? Now, if you hear me, use this interchangeably. Permanent residency is for. A green card leads to a green card. The green card, typically speaking, does not have conditions on it. So it's not like a marriage based green card. And you might be saying, right, but how is this different from a work visa? Well, it gives you authorization to work. It gives your client authorization to work for your colleague or your friend authorization to work. But it's valid for much longer and it allows for free more free flow of work so that individual can effectively jump from one employer to the next. Right? And then you might be saying, Yeah, but if I get the O-1 visa, which maybe, you know, or maybe you don't know, but if you might be asking saying if I get the O-1 visa, I can also make that valid with multiple employers. And you'd be absolutely correct. You could. But the difference is that not all employers. Not all employers accept a multi employer based O-1 visa. Okay, they don't. And so what can happen sometimes is that with an O-1 visa because it is quote unquote a non-immigrant visa, what can happen sometimes is that an individual will. Will pursue it. They'll have a sponsor, an agent or a company will will employ them and they'll go forward with that. But unfortunately, when they try to change jobs or go to work somewhere else, what will happen is the employer, the new employer, the new prospective employer will say, Yes, but my name's not on your O-1 visa. I want to hold your O-1 visa. I want to own that o-1 visa because it's a non-immigrant visa. In the case of a green card, that doesn't exist. Right. So while technically yes, it is kind of a work visa, the difference is that it's it's an immigrant visa, not a non-immigrant visa. So if any of you have done any work within immigration, whoever's reading this, listening to this or viewing it or just entertaining it in some fashion, you like the little pun there for anybody who's involved in this. If you've ever done any work with an immigration, if you've completed a ds160 or any other kind of immigration based form, you might notice that one of the questions that often comes up is, has anyone filed an immigrant petition for you? I get this question a lot. Okay. And this is a little tip tip for the practitioner, and I'm going to yell that out from time to time. So apologize to the to the audio engineer who's listening to this because am going to yell from time to time. So you don't know if you want to turn my volume down. But in any event, tip practice. Tip two Wake up, people. Pay attention. If you're advising a client, if you're advising a client, or whether it be the individual beneficiary, the petitioner, the employer, whomever, if you're advising someone about an immigration process and they come to you and say. Hey, my company should be my company filed a petition for me. Should I be answering this question about the immigrant petition, or is that you who filed it? The first thing you want to ask is what kind of petition was filed? And odds are someone's going to come to you and say, Oh, it was it was an O or Well, we started the perm process, right? Perm for those of you who don't know, perm is a very onerous process. I don't like it. I don't get involved in it. That's why one of the reasons we're not discussing it here. I also find that it's just not very pleasant for most sports and entertainment companies. Most companies in general find Perm to be very unpleasant because it's very exposure laden. That being said, you have to go through a process with the Department of Labor to get a prevailing wage determination for the position. And then you also have to conduct or at least the employer has to conduct recruitment efforts to be able to ensure that there's no American who's going to be harmed from this process or who needs to be able to apply for the position and qualifies and so on and so forth. It's onerous, takes time. Again, like many other aspects, very draconian. I am personally not a very big fan of it, and so that is exactly why I don't necessarily discuss it here. I don't like it and I don't think it's appropriate for this for this field. So that being said, nonetheless, looking back at the list here, the and going back to the practice tip, always find out when someone says, well, so and so filed an immigrant petition for me or an immigration petition for me find out whether it's actually a green card petition. Right. Or a petition to qualify for a green card. The first phase or if it was really a non-immigrant visa that they filed. Right. Because if it was an O, well, then it's a non-immigrant visa. There was no immigrant petition. Okay. But nonetheless. Point being, how is this different from a work visa? Right. Well, it also allows travel. It's valid for up to ten years. And most fundamentally, the process is done in two different phases. For most people who are in the United States. Okay. For most people who are in the United States, they can effectively go from an, say, a student visa to an artist visa. They can go from an F-1 to an O-1 and they don't need to leave. Okay. However, if you're going for a green card, you have to make sure that that second phase is current before you can protect someone's status, because if it's not current, they may have to leave or they might lose their work authorization or any any other thing might come up. And this is where the two phase process comes in that, again, I keep talking about and we're going to dive into. So just keep that in the back of your mind, in the front of your mind as it may be that there is a two phase process. Now Eb1 A It is for individuals of extraordinary ability. That is a very lofty, lofty assertion. Right? Extraordinary. Extraordinary, if you will. It is a very lofty title. It's a very lofty description. And the issue that always comes down there is people don't think they qualify and in most cases, they might be right. In my experience and again, you know, this is just kind of my experience, but this process, having done this, I've been doing this for over a decade. My experience with this process indicates that immigration, typically speaking, for eb1, is really, really, really want to see. They want to see some really ravikant extravagant numbers, extravagant appearances. They want to see extravagant, Right. And so an example of that, they might. Want to see that somebody has a profile in Harper's Bazaar or People magazine. Right. That's what they might want to see. They want to see that somebody is at the top of their field, at the top of their industry, the top 1% of their field of their industry. Incredibly lofty. It's a very, very high hurdle. So the question becomes, well, how do you exactly evaluate these people and how do you determine if somebody really qualifies for that? A combination of one past experience. So unfortunately, in the realm of business, immigration, we don't have a ton of case law. We have some we don't have a ton we don't have a ton of precedent setting opinions that are really applicable or pleasant for us, because what happens is a lot of these cases get settled. When somebody sues immigration, they more often than not settle because what happens is immigration will say, yes, well, how about we give you the green card and you go on your way and leave it alone and drop your lawsuit and most likely that company or that person? Yeah, great. I'll take what I wanted and run. That's fine. Thank you very much. So unlike family law, humanitarian law and many other areas, we don't have a ton. We do have stuff, though. We do have some precedent setting decisions, whether it be from the Administrative Appeals office, the AAU, or whether it be from, you know, let's say, the second department or first Department or any other, you know, district or court of appeals department throughout the country that might be applicable. So you do have to do some research here to find out what a great manual practice tip, a great manual if you're starting out or if you're trying to break into this area, if you're trying to experience this area or or if you just want to freshen up and you haven't had it for a while. Um, a great. Practice manual. Okay. It's Kurt's bands. Kurt's bands. Um, publication basically is a is the treatise for this area. It has fundamental points. It has oodles of case law. It has pretty much everything that you would want and need to be able to demonstrate and satisfy the arguments before immigration that you could look for. It also becomes kind of a one stop shop so that you don't need to worry about, oh, no, let my Lexus account lapse or I don't have I don't have one. I quite frankly don't have one because I don't really need it. Another really, really good tool, if you aren't familiar, is the American Immigration Lawyers Association link a la link. It is a fantastic toolbox that has a ton of information and treatises available, including Kurt as well as many, many others. I don't see that as a promotional aspect. I say that from a fundamental practitioner perspective in immigration. On this side, business, immigration, sports and entertainment, we do not really live in the courts as much, so we don't really live within Lexis or Westlaw. And it's funny, whenever they call me, they say, you know, see you, you don't you like this. Why? Why is that? And I explain it's not really applicable to what I do. It's just not in this field. It's more Kurt's band. Ellalink and a variety of other treatises and practice guides that are published both through Ala and other organizations. Again, don't work for Ala. I'm not getting any kickback. Don't see this as a you have to go to them. I say this simply because I find them to be and their information to be fantastically useful and very beneficial. That being said, anyhow, back to the Eb1 A When you're evaluating someone for this, you want to look to the categories, right? So what you might do is you might say, okay, let's have them fill in this information. And one of the things you want to look for is whether or not they've received lesser national or internationally recognized prizes or awards. Well, what is a lesser national or international prize or award? It could be an investment into their company. It could be maybe something that was issued nationwide and available. Key here is that it needs to be available so to the nation. So it can't just be something that that the individual received from within a company that they were working for outside. So let's say you have somebody who is an aeronautics engineer who works for GM and they want a ton of awards at GM and prizes and honors and everything like that. Great GM is an international corporation, a multinational corporation for that matter. Well, unfortunately, those prizes, awards and honors aren't necessarily going to help us here. Okay. But what would. Well, if somebody gets selected into 500 startups for, say, their sports or say, marathon running company. Um. And its technology and its associated product offerings and services offerings. That could certainly work. Right, Because that's an that's an award or a prize that is open to a national group, arguably an international group being the 500 Startups is an international organization. And like plenty of other startups and accelerators and work in that space. Then you have evidence of membership and associations in the field which demand outstanding achievement for their members. Now, what immigration typically looks for here, for lack of a kind of a better association, you might say the Major League Baseball Players Association, even if the person is is in the minors. Okay, you can still be a member of MLBPA, the Players Association. Anyone who is signed to a professional baseball team is in the MLBPA, particularly if they're on the 40 man, which means that they're part of typically the starting roster that's available for call up or for active play and so on and so forth. So you might look to that or the NHL Players Association or the like. That could be an example of a membership in the association in the field. Then you have evidence of published material about you. That's the individual that the athlete or the artist or the entertainer in professional or major trade publications or other major media. Now, you might be saying, well, how do I go about determining if something is major media and what do I do? Well, not everything is going to be l not everything is going to be Harper's Bazaar, right? It's not all going to be men's health and all that other kind of good stuff. So what do you do? Well, historically, I would say go to Amazon's Alexa where you can get Web metrics and Internet circulations and you can pull all of that raw data from there to find out the Internet engagement and the websites ranking, especially because most everything is going to be published online, or at least those are the metrics that you're going to be using. Now, what you would want to do, not now, but what you could do alternatively is go to Similarweb. Similarweb is another Web circulation metrics website that gives you both website ranking worldwide across categories, website ranking worldwide within a particular category. And then website ranking in a country within a particular category. Okay. It also tells you how many visits, what its circulation is on a month to month basis. So you can see that as well. Immigration typically accepts this, though some officers do not. So you might want to be prepared to argue it further about the veracity. That is, argue the veracity of similarweb's metrics and processes and procedures. You also might want to cross-reference this with Netcraft. Netcraft is a company that surveys how many websites are active on the Internet, amongst many, many other things. And they do it on a month to month basis. What I always do is practice tip, cross-reference the Similarweb data with Netcraft metrics and you'll be able to determine in a percentage where the website ranks. So if, for instance, if a website falls within the top, within, say, 11,100 websites on the Internet, I'm sorry, 11,100,000 websites on the Internet, 11,100,000. And if it ranks somewhere in there. Vince in the top 10%. Great. Ray, you have a top major media. It reaches a lot of people. It's very prominent. Another way you might want to look to major media is whether it's significant or distinguished in its company country, not company in its own country and go from there. Okay. Now evidence that you have been asked to judge the work of others, either individually or on a panel. This could be, interestingly enough, you can use conference attendances as part of this. If the individual was there. To either speak about something other than themselves or their company, or if they were there to speak about players. For the performances, the metrics that are available, whatever the case might be. So an example of this might be if you think of players after an NBA game, right, players typically give a press. They go to the press box and they go and talk to the press right after the fact. Same thing with most other sports. They go and talk to the press. They're asked a bunch of discerning questions about how do you think so-and-so played or how do you think this person played? Or what do you think the problem was here? What happened to the team? Why didn't this work? Why didn't that work? That's all Judging the work of others and being invited to judge the work of others. Now, a lesser example of that, or less common example of that, or rather, I would argue, a more common example, but a lesser. Known example. Let's say it's just attending a conference. Right. And as a panelist or a judge, obviously would be very straight forward. Okay. The trick here, though, is that the individual has been asked to judge not just that they went and did it, but rather that they were asked to judge as well. And I've seen immigration officers push back on that one aspect from time to time. So just be prepared to argue that as well. Another aspect is that you've made original contributions of major significance to the field. Now how the heck do you demonstrate this? And notice I'm even though I'm from New York, I'm cleaning up my language very much. And as I'm sure we'll be very welcome to the folks that at the company and Quimby and whatnot, I'm cleaning up my language. I'm not being foul mouthed or potty mouth. But nonetheless, the point is, how do you demonstrate the originality of someone's contribution? Well, patents could be one way, but most artists and entertainers and even athletes, they're not going to have that. So you use letters of recommendation and testimonials, right? You use testimonials from people with very specific clear language. You also might want to use that in and cross-reference that with publications and press and media material to be able to further demonstrate the amount of impact that the individual's work has had. Right. Then there's authorship of articles and professional or major trade publications or other major media. Now, I know it says scholarly articles. It doesn't have to be in a peer reviewed journal. It doesn't have to be in a scholarly journal or anything like that. Don't worry about that. But rather this goes back into the major media. So usually what you would do is combine the third category published material about the individual as along with this criterion, right. Published material by the individual and incorporate it. Okay. Also you're using the same metric. So it just makes life easier for the officer. And this is again, practice tip. You want to make life easy for the officer. Whatever's easier for them is easier for you. It's better for you, it's better for it all. So that is what you want to do. Okay, So keep that in mind. That is precisely what you want to do in that regard. So. Next category. Is that or Criterion rather, is that evidence that your work has been displayed at artistic exhibitions or showcases? This obviously is only going to apply to artists. Perhaps the entertainers for live performance entertainers. You can demonstrate this through boxes, playbills, press materials, all that kind of good stuff. Relatively straightforward evidence of performing a leading or critical role for a distinguished organization or establishment. Right. Now, what you want to do here, like the originality aspect, is also utilized. Letters of recommendation. Letters of recommendation. Okay. So what you need to do is focus on the letters of recommendation that are available. To you and and use as much great detail as possible in those letters. Okay to be able to demonstrate both the individual's importance and originality of their contributions. Right now evidence that the individual commanded a high salary or other significantly high remuneration. This you're going to just have to go to either the Department of Labor on a country by country basis or job posting website. Indeed, CareerBuilder, they all work very, very well. So you don't have to worry too much about that. Then we have evidence of commercial successes in performing arts. This would be done through box office receipts. Okay, this would be done through box office receipts and other aspects like that. So key things to keep in mind that the thorough discussion, at least of the fundamental evidentiary categories for an. Now how do you prevent that is going to be done on an individual case by case basis, but it's at least important to understand those categories. They are all very fundamental. Again, very similar to an O one. It's the standard sorry, the level of scrutiny that immigration is applying to it is much less here than it is in the O one sector. I'm going to move on. See, the clock is ticking and I'm I'm talking quite a bit. So I'm going to keep on moving forward. I think we're going to hit plenty of time. All right. I think we have at least another 20 minutes or so. So we'll just keep on moving. Then we have EB one B, which is for outstanding researchers and professors. Outstanding researchers and professors now here. Oh, I should also say sorry, we need to be able to to demonstrate three of these categories. Okay. We need to be able to demonstrate three of those categories or a one time major achievement, which would be like a Grammy or an Oscar or something like that. But in most cases, you're going to be looking for these evidentiary categories and you want to satisfy three. I practice tip recommend doing five if possible. Okay. The reason for five is that at least if obviously 1 or 2 fail, you have a couple other backups and so on and so forth. That is just kind of the fundamental way that that works. Now for EB one B's outstanding researchers and professors. We need to be able to demonstrate two of these criteria. Okay, so it could be either evidence of the individual's receipt of major prizes or awards for outstanding achievement, which you can demonstrate through the selectivity, the number of individuals who apply. The geographic scope of the applicants and where individuals come from, how competitive the the review and evaluation is on all of that. That process and procedure for the award and honor. Those are all key aspects for the major prize and award. You also might want to use letters of recommendation. Evidence of membership and associations that require their members to demonstrate outstanding achievement. This kind of tricky. Okay, this can be a little tricky, but you need to at least kind of keep it in mind and consider the fact that the immigration officers are looking for associations that have very strict and particular areas of expertise. Right. And very strict and specific areas that allow for the individual to be able to be confirmed as an expert, as an outstanding researcher and professor. Effect. Next up, we have evidence of published material in professional publications written by others about the non-citizens work in the academic field. This can be kind of tricky. This can be kind of tricky specifically because what we might have, or at least what does happen from time to time is that you have officers who will look at something and say, Yes, but was this actually done, this done about you or no? Um, you know what exactly has to happen? Um, you know, how does this work, right? How does this work? If if someone's publishing material about me, does it qualify as being in a professional publication the same thing as before, which you want to do? Uh, what you want to do is focus on the metrics that are available. You want to focus on the metrics that are available, and you want to build them out to be able to demonstrate that the material is, in fact a. Prominent or major publication. That is a major publication of significance. That is one that qualifies as a professional publication and that is published about the individual. Now key here is all about academic fields. So again, taking that example before about an outstanding professor or researcher who might be, let's say a doctor or somebody who publishes work or is in the area of sports medicine. Right. What you want to look here is whether it's in their academic field. Right now. L Let's say L Magazine or Vanity Fair might not fall in that realm, but mental health could. Or women's health could. Or runner's edge could. Right. So you have to kind of you have to be mindful of the academic field that you're working with and the nature and scope of what that looks like. Then we have evidence of original or scholarly research contributions to the field. That is usually done through letters of recommendation testimonials. Okay. Usually done through testimonials. And you also have evidence of authorship, of scholarly books or articles in scholarly journals with international circulation. Now, here, notice they're not saying other major media because this is primarily focused on scholarly achievements and attributes, scholarly projects, scholarly productions, scholarly work. Okay. And that is all part of the eb1. That is the fundamental aspect of the B-1b. It should be scholarly for the individual, which is why we focus on usually doctors or other professional professionals within sports and entertainment could be could be an architectural designer for all we care about here. But an architectural designer could certainly qualify in the entertainment realm, particularly if they're addressing the aesthetics of buildings and structures and opera halls and the like. Now. A couple other aspects about the B-1b that are important to note. Within the EB one realm, the employee. It has to be employer sponsored. So what that means is that you have to have the employer sign off and submit the paperwork. Whereas an EB one A and as we'll see in a second, the EB two national interest waiver, neither of those require. An employer to sponsor you. You don't have to have a job offer, but you do for an H-1b. Okay, that employer and sorry. And because of that, that employer has certain obligations on them. They have to be able to demonstrate that they can pay your salary going forward, whatever that salary is. They have to be able to demonstrate that they have three other full time researchers in an area that you work as well. And these are administrative aspects that I point out here, specifically because it's where I've seen cases fail in many instances. I've also seen cases fail elsewhere. But, you know, the key aspect here is knowing what to do with that. So, for instance, you might have an employer that is that has a thousand plus employees. Immigration sometimes just doesn't want to hear it. They just don't want to accept that. They don't want to accept that a major, major national company that has all of these employees and provided proof of that did so in a format or did so in a by a means that didn't necessarily work based on their particular protocol. So what you have to do is be mindful that you might want to file a motion to reopen or something else in that realm. Okay. And there are other ways to kind of come back from this. You can file a motion. You can refile. You can file an appeal. But nonetheless, these are the key aspects. And remember, you want two of these evidentiary categories. Again, this is also a very kind of high level review. We're working top down, just running through. If we do another one of these sessions and we can always at least, you know, more narrowly tailor that and focus on the fundamentals of, say, just an one B or focus on the fundamentals of just an EB one A and really do a deep dive into into how you evaluate with examples and everything else. But for this purpose, for our purposes here, know that you need two of these categories and there are some other administrative processes and aspects as well. Now you have eb2 and national interest waiver. There are two paths to an eb2. I'm gonna let you read that for a moment before I talk. Of these two paths, you only need to satisfy one. Okay. You only need to satisfy one. It could be an advanced degree that the individual has an advanced degree that is applicable to their field. So, for instance, you might have someone who has a master's degree or a an equivalent of a master's degree not issued from a US institution. They would most likely qualify if it's in their field and it's in their area of specialty and where they focus, they would most likely qualify on the advanced degree side and be able to just kind of push through. That would be great. Okay. That would be great. That's easy. However, some officers take the interpretation that this is that the industry or the field requires an advanced degree. That can be much more difficult. So, for instance, like an individual who is a journalist who's working in entertainment, they most likely have a master's, but they don't have to. You don't have to have a bachelors, but they most likely do. And so what do you do in that instance? Well, then you you argue the advanced degree. I always argue advanced degree. If someone has an advanced degree that's related to their field, obviously if they have an advanced degree in culinary arts, but they're a law professor, it's not going to work. Right. But if it's in their field and it's in their area of specialty, then you can do that and you can show that, okay, Alternatively, you have exceptional ability and you need three of these categories. Again, I always argue both. I like arguing both because I find that if one fails, at least again a fail safe, fallback mechanism that we have here to protect the interests of the client. So what you might have is one. Vetted from current or former employers, documenting at least ten years of full time experience in your occupation. Now. This is relatively straightforward. It's a letter of recommendation that's confirming that the individual has been working for ten or more years. I've seen recently just one officer, just one officer who indicated that. An individual's recommenders. Who have known him for five years or more were not qualified to confirm that he's been working for ten or more years because they haven't known him for ten or more years. That is outside the confines of law, rule and regulation. And so as a result, I would discount that as just kind of a one off or an outside the box. Bad officer issuing a bad decision. I've never seen that before in the years I've been doing this. So I don't think it'll happen. But it's the kind of thing that I always keep an eye out for in case it is a trend, because you never know. You just never know. So that's that. But generally speaking, it's just it's straightforward letters of recommendation confirming the time worked. Then there's also that the fact that you have a degree, the fact that you have a degree or certificates or achievement or honors or awards shows your level of exceptional ability. Right. So even if it doesn't fall within the category of the advanced degree carve out, it could certainly work here for us. Okay. Then there's also a license to practice in your profession or certification for your profession. This isn't going to be applicable to most people in the sports and entertainment world unless you're a lawyer or an accountant or something like that. It's not really applicable to most of these folks, but it might pop up. Then there's evidence that the individual has commanded a salary or other remuneration for services. This same as with the EB one. A Like we said, we want to go to the Department of Labor either in their home country or in the US and compare the wage rates. Indeed, CareerBuilder job posting websites, they're all applicable. They're all fundamental to our purposes here. Then we have membership and professional associations. Those are relatively straightforward and we can definitely kind of lean on them in many respects. If you just take a look at the materials that are available, right? Then again, you might have an individual who's not a member of a professional association, in which case you would just leave it aside. Then you have recognition for your achievements and significant contributions. Those are, again, letters of recommendation. And then other comparable evidence. So what you might want to put here in other comparable evidence could be press materials. It could be articles that the individual published. It could be articles about the individual. It could be articles about the individual's work that don't even reference the individual. Right. It could just be look at the amazing performance of this team. Look at the amazing performance of this band. It doesn't reference the individual in in particular, but it could certainly be applicable to them. Okay. Then we have. So we have those two paths. Those are two paths to a successful eb2. But the question then becomes how do you get out of that whole perm business? How do you self petition? How do you get there? Well, that's where we have the court case. Matter of dinosaur like told you there aren't many cases, but there are some and they're applicable here. Matter of dinosaur is one. I won't dive into the case because we don't need to necessarily discuss it. Plus, I think we're very short on time at this point. So the fundamental discussion, though, of matter of dinosaur is one that the individual. Had an endeavor that is in the national interest. Right. Is the individual's endeavor in the national interest because it's either going to enhance or develop the economic interests. It's going to expand some cultural significance here or there. What is the purpose that the individual is coming to the states for? Not that they have to have a job, but more specifically that they have to have some guiding, guiding light of what they're going to be doing and what the scope is of what they're going to be doing. Okay. That is kind of the focus here. What is the endeavor? What is the person going to be doing? So you explain that then you have is the individual poised to advance the endeavor? Well, based on their achievements, you would certainly hope so. And so you would re-argue that re-argue the nature and scope of their achievements and the importance and significance of what they do and who they are and all that good stuff. Okay. Then you have the third question, which is whether or not it's in the America's national interest to waive the person's labor condition, recruitment efforts or labor condition application that is that whole perm business. So the question becomes, do we want to allow this individual to forego that recruitment effort because they're just so great and their work is so important that there is no competition for them? Essentially what it's saying, you know, boiled down to fill down more colloquial based version. And you have to have a discussion of those three elements in your petition somewhere. But when you explain it all right, when you explain it all and you detail the fundamentals of the person to immigration, the argument should be, yes, right. It should be yes. Or at least that's where you hope to land. Here we have whether or not athletes. Qualify under the Eb2 two national interest waiver. Category. The answer is yes. Thanks to another case matter of masters. Specifically, they qualify under arts, notably the art of playing the sport. Okay. The Art of playing sport. Now, the key language here and I'm going to read this, the key language here is that from that particular case in matters of masters. So to give you an indication of what was at stake there and what was going on. He language evidence in the form of newspaper clippings, professional tournament brochures, and a letter from the president of the Ladies Professional Golf Association of the United States, of which the alien is a member. The non-citizen is a member. Establishes that the beneficiary has one major professional golf tournament in the United States, Canada, Australia, New Zealand and South Africa. He has competed against the best women golfers in the world. During 1967, he was the 10th highest money winner among professional women golfers competing in the United States. So you can see there how these categories were just applied, right? Not so much. There's a degree, but you can see how those categories that we just discussed. Were applied. Okay. So keep just the fundamental takeaway here is that I want you to understand that athletes qualify for an eb2 to national interest waiver potentially. Obviously, individual qualifications on a case by case basis and so on and so forth. But as a general rule, athletes can qualify. In this section. Okay. Now, like I said before, we have the visa bulletin, right? We have this magical visa bulletin that we have to consider. That goes both ways. Right. Which it goes forward, it goes backwards, It stays static. What is it? It is the determination of when an individual can apply for a green card. It does not determine when someone. Can a can self petition or file the petition for an EB one A and one B or an EB two. Okay. It does not concern whether that initial phase, that initial step can be filed, but rather to the contrary, it determined whether and when an individual can file the second phase, the actual application for the green card. But why does it matter? Right. Well, you might have someone in the States who's going to be falling out of status. You have to plan accordingly. Maybe you need to renew their visa. Maybe you need to renew this or expand that out. Okay. Then the ultimate question, how do we read it? Well, it's very onerous and draconian. So here we go. Relevant section for our discussion. And here's a link for you to go to the visa bulletin to be able to see it now. I'll let you enjoy that. This particular preferences how 28.6% of the worldwide employment based preference level plus any numbers not required for fourth and fifth preferences and so on and so forth, get added to the first category, which then trickles down into the second, which then trickles down into the third. Okay. Now the methodology that they use to come up with these dates. I don't fully understand. I don't think anyone really fully understands it other than the people who are directly working with it, If I'm being very, very honest here. But what's important is just to know how to read it. So if you have a client who was born in India. And they have an approved eb1 A Right, let's say they're an incredible entertainer and they have an approved a. If they have a priority date. That is, if the date that they filed their i-140, their first phase self petition. Okay. Is after February 1st, 2022. So let's say it's on July 1st, 2022. They cannot file for a green card. They can't do it. Can't do it. Not allowed. Why is it not allowed? Because it's not current. If not current. You see what is current. Is all chargeability areas except those listed at least as of July 2023. That's what the C means. The C means current. That means that if you're somebody from, say, Russia, you can come into the state with an Eb1 A you can come into the state, apply for your eb1 or self petition for an Eb1 A And you can also apply for an adjustment of status. At the same time, you can apply for the green card at the same time. Now you'll see there is the final action date, which is the date that a green card can actually be issued and awarded to an individual. And then there is the dates for filing. Which one gets used is completely, utterly and totally at the discretion of USCIS. These dates are set forth by the Department of State. Okay, But US Citizenship and Immigration Services, which is the department and division that handles the visa petitions that are filed, is the one that determines whether you use the dates for filing or the final action date. So now I want you to watch India under the first preference. So employment based birth column for second row, first slide on over, fourth column first second row. February 1st, 2022. Final act. Look at where we are in August. January 1st, 2012. It just went back. Very, very, very far. I've never seen that kind of severe retrogression. That is retrogression. Why it happens. I have no idea because I can't understand how they could have possibly received so many applications elsewhere that would force those to be current and force such a backlog on the first preference category. But nonetheless, it is something that you need to be aware of because you might very well have a client who has an approved one, but unfortunately their priority date isn't current or they just missed their priority date, so now they might fall out of status. You have to clean that up and you have to figure out what to do, get them a new non-immigrant visa or the like. Okay. So as of July, immigration determined that you must use the the final action date. The same thing is true in August. We don't know what's going to happen in September or October. Full note that's worth being aware of. The fiscal year for the government ends in September. That means that the new fiscal year begins in October. We're expecting or at least I'm expecting to see these numbers shift a bit and change. And so it's very important that you at least be mindful of that. That being said, since we're just about out of time, I want you to pick the right path to a green card. And this is a practice tip for all of you. So read this page, read this page 30 times, don't care. But you have to be a strategist and not simply a clerk. Look to the best option that has the greatest likelihood of success for your client and realizes what they want might not be the most straightforward example. You might have to veer and make a couple turns, but you have to focus on that. Then you have to provide the client with all the options and opportunities and therefore give your own recommendation as the expert in the field. From an ethical perspective, you have a duty to do this, and from a professional perspective, you have an obligation to be clear, concise or verbose if you prefer. It doesn't matter to me and expository. Be very clear. Give them the facts and the possibilities, the options, and conclude with the Path recommendation. Okay. I would provide specific case examples, but I spoke a bit longer than I thought. So if you have any questions about specific case examples or if you want to discuss further, you're welcome to contact me. My information is at the bottom of most of the slides. We're not going to have time to discuss denial tiers, but we'll just knock those out. Normally, though I mentioned it, what we might do is conduct a file, a motion to reopen and or reconsider, as well as an appeal to the Administrative Appeals Office. And then lastly, to conclude, for the solo or small firm practitioner, always pay close attention to timing, understand the beneficiary or beneficiaries, and be mindful of the attorney client relationship that may be formed. You may be representing the individual, but maybe their business is paying you. Who do you owe responsibility to for in-house counsel? Always pay close attention to timing. Always know who your client is and know what your client is obligated to pay. Each of the path to permanent residency, have their own benefits and drawbacks. But be mindful that you may need or want to employ multiple avenues at any given time. And just remember, no matter what, that every problem has a solution and that there are options. Our job and your job is to figure out which one is best given the circumstances. That being said, thank you very much for joining me for this hour. I hope it was useful or interesting to you. I know it was fun for me. That being said, you have a wonderful rest of your day.

Presenter(s)

MCJ
Michael Cataliotti, JD
Principal
Cataliotti Law P.C.,

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                                                                                                                  Credits
                                                                                                                    Available until
                                                                                                                    Status
                                                                                                                    Pending
                                                                                                                    Credits
                                                                                                                      Available until
                                                                                                                      Status
                                                                                                                      Pending
                                                                                                                      Credits
                                                                                                                      • 1.05 general
                                                                                                                      Available until

                                                                                                                      July 20, 2024 at 11:59PM HST

                                                                                                                      Status
                                                                                                                      Approved
                                                                                                                      Credits
                                                                                                                      • 1.0 general
                                                                                                                      Available until

                                                                                                                      July 31, 2024 at 11:59PM HST

                                                                                                                      Status
                                                                                                                      Approved
                                                                                                                      Credits
                                                                                                                        Available until
                                                                                                                        Status
                                                                                                                        Pending
                                                                                                                        Credits
                                                                                                                        • 1.0 general
                                                                                                                        Available until

                                                                                                                        July 20, 2025 at 11:59PM HST

                                                                                                                        Status
                                                                                                                        Approved
                                                                                                                        Credits
                                                                                                                          Available until
                                                                                                                          Status
                                                                                                                          Not Eligible
                                                                                                                          Credits
                                                                                                                          • 1.0 general
                                                                                                                          Available until

                                                                                                                          July 20, 2025 at 11:59PM HST

                                                                                                                          Status
                                                                                                                          Available
                                                                                                                          Credits
                                                                                                                            Available until
                                                                                                                            Status
                                                                                                                            Pending
                                                                                                                            Credits
                                                                                                                              Available until
                                                                                                                              Status
                                                                                                                              Not Eligible
                                                                                                                              Credits
                                                                                                                                Available until
                                                                                                                                Status
                                                                                                                                Not Eligible
                                                                                                                                Credits
                                                                                                                                  Available until
                                                                                                                                  Status
                                                                                                                                  Pending

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