H1B Fashion Models of Distinguished Merit and Ability

H1B fashion models

 

Introduction: H1B Fashion Models

The H1B visa category is open to fashion models of “distinguished merit and ability.” Although the documentary requirements for petitions for H1B fashion models are distinct from other H1B petitions, H1B fashion models are subject to the same rules as H1B specialty occupation workers regarding the period of stay and extensions of stay. In this article, we will review the statutes and regulations regarding H1B fashion models as well as when the O1 visa category may be a superior option to the H1B category.

To learn about general H1B rules and regulations, please consult our material on H1B visas [see work visas].

Statute for H1B Fashion Models

Under section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (INA), the H1B category is open to fashion models of “distinguished merit and ability.” The “distinguished merit and ability” standard is distinct from the majority of H1B workers who must be coming to the United States to work in a “specialty occupation.”

Acting as a Petitioner and Valid Employer-Employee Relationship

Under 8 C.F.R. 214.2(h)(4)(ii), a United States employer must act as the H1B petitioner. 8 C.F.R. 214.2(h)(4)(ii)(2) explains that the employer must have “an employer-employee relationship with respect to the employees under this part, as indicated by the fact that it may hire, pay fire, supervise, or otherwise control the work of any such employee…”

The United States Citizenship and Immigration Services (USCIS) policies regarding valid employer-employee relationships are found in a 2010 memorandum authored by Donald Neufeld [see memo].1 The requirement that the petitioner be a United States employer and have a valid employer-employee relationship with the beneficiary are the same for H1B fashion models as for H1B specialty occupation workers. To learn about employer-employee relationships in general in the H1B context, please read our full article [see article].

Agents as Petitioners

In certain cases, an agent may act as the petitioner for an H1B fashion model even if he or she does not control the end product of the fashion model's work.

Under 8 C.F.R. 214.2(h)(2)(i)(F), an agent may file an H1B petition “in cases involving workers who are traditionally self-employed or workers who use agents to arrange short-term employment on their behalf with numerous employers, and in cases where a foreign employer authorizes the agent to act on his or her behalf.” The regulation states that the agent may be the actual employer of the beneficiary, a representative of the beneficiary and the employer, or a person or entity authorized to act in place of the employer.

8 C.F.R. 214.2(h)(2)(i)(F) sets forth the following requirements for agents acting as petitioners:

1. An agent performing the function of an employer must guarantee the wages and other terms and conditions of employment by contractual agreement with the beneficiary or beneficiaries of the petition. The agent/employer must also provide an itinerary of definite employment and information on any other services planned for the period of time requested.
2. A person or company in business as an agent may file the H petition involving multiple employers as the representative of both the employers and the beneficiary or beneficiaries if the supporting documentation includes a complete itinerary of services or engagements. The itinerary shall specify the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishment, venues, or locations where the services will be performed. In questionable cases, a contract between the employers and the beneficiary or beneficiaries may be required. The burden is on the agent to explain the terms and conditions of the employment and to provide any required documentation.
3. A foreign employer who, through a United States agent, files a petition for an H nonimmigrant alien is responsible for complying with all of the employer sanctions provisions of section 274A of the Act and 8 CFR part 274a.

8 C.F.R. 214.2(h)(2)(i)(F)(1)-(2) will likely arise in many petitions for H1B fashion models. In both situations where the agent acts as an employer, the agent will be required to include with the petition a full itinerary of the H1B model's intended activities when he or she is working in the United States. In subpart (2), the agent must explicitly include with the itinerary information regarding the model's actual employers. Where the agent is not the actual employer, USCIS has the discretion to request contracts between the employers and the beneficiary or beneficiaries.

The Neufeld Memorandum on employer-employee relationships includes an interesting scenario where the agent is not the employer. In the scenario, the petitioner is a modeling agency that books shows for the model. The petitioner and the beneficiary have a contract that includes terms such as how the agency will “advise, counsel, and promote the model for fashion runway shows.” The petitioner will receive a percentage of the beneficiary's fees when the beneficiary is booked for a runway show with a fashion house. When the beneficiary is booked, the beneficiary can negotiate pay with the fashion house. The fashion house exercises the right to control over the beneficiary's employment. Although the modeling agency does not exercise control over the beneficiary's work, the end-employer (the fashion house) has and exercises the right to control over the beneficiary's employment.

Petitioning Process

A petitioner for an H1B fashion model is required to first file a labor condition application with the Department of Labor (DOL) for the position being sought. The statute stating the requirements for the labor condition application is found in section 212(n)(1) of the INA. The labor condition application may be filed on behalf of multiple fashion models. The rate of pay listed on the labor condition application must be at least the higher of the wage paid by the employer to similarly situated fashion models or the prevailing wage level for fashion models in the area of intended employment. After the labor condition application is approved, the petitioner may file the Form I-129 petition on behalf of the fashion model(s).

Regulations for H1B Fashion Models

Under 8 C.F.R. 214.2(h)(4)(C), an H1B classification may be granted to an alien who is of “distinguished merit and ability in the field of fashion modeling.” Such an alien must be “prominent in the field of fashion modeling.” Accordingly, the alien must be coming to the United States to perform “services which require a fashion model of prominence.”

“Prominence” in the context of H1B fashion models is defined in 8 C.F.R. 214.2(h)(4)(ii) as follows:

Prominence means a high level of achievement in the field of fashion modeling evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of fashion modeling.

A petition for an H1B fashion model must demonstrate that he or she possesses skill and recognition above that which is ordinarily encountered and that he or she has a strong reputation in the field of fashion modeling. Additionally, the petition must demonstrate that the fashion model is coming to the United States to perform services which require a fashion model of his or her caliber.

The specific documentary requirements for a petition for an H1B fashion model are found in 8 C.F.R. 214.2(h)(4)(vii)(A). The regulation requires that a petition for an H1B fashion model include:

1. Documentation, certifications, affidavits, writings, reviews, or any other required evidence sufficient to establish that the beneficiary is a fashion model of distinguished merit and ability. Affidavits submitted by present or former employers or recognized experts certifying to the recognition and ability in factual terms and must set forth the expertise of the affiant and the manner in which the affiant acquired such information.
2. Copies of any written contracts between the petitioner and beneficiary, or a summary of the terms of the oral agreement under which the beneficiary will be employed, if there is no written contract.

For the requirement found in 8 C.F.R. 214.2(h)(4)(vii)(1), it is essential to ensure that any affidavits filed in order to support the credentials of the petition beneficiary as being a fashion model of “distinguished merit and ability”.

8 C.F.R. 214.2(h)(4)(viii)(B) sets for the petitioner requirements for demonstrating that the position that the petition is for requires “prominence.” The petitioner must demonstrate that the position meets one of the following criteria:

1. The services to be performed involve events or productions which have a distinguished reputation;
2. The services are to be performed for an organization or establishment that has a distinguished reputation for, or record of, employing prominent persons.

The petitioner need only demonstrate 8 C.F.R. 214.2(h)(4)(viii)(B)(1) or (2). The provision that will apply will depend on the nature of the position that the H1B petition is for.

8 C.F.R. 214.2(h)(4)(viii)(C) sets forth the requirements for demonstrating that the petition beneficiary is “a fashion model of distinguished merit and ability.” In order to demonstrate the beneficiary's qualifications, the petitioner must submit two of the following forms of documentation showing that the beneficiary:

1. Has achieved national or international recognition and acclaim for outstanding achievement in his or her field as evidenced by reviews in major newspapers, trade journals, magazines, or other published material;
2. Has performed and will perform services as a fashion model for employers with a distinguished reputation;
3. Has received recognition for significant achievements from organizations, critics, fashion houses, modeling agencies, or other recognized experts in the field; or
4. Commands a high salary or other substantial remuneration for services evidenced by contracts or other reliable evidence.

In order for the petition to be approvable, the petitioner must demonstrate that the beneficiary meets at least two of these requirements. The petitioner should consult with an experienced immigration attorney for guidance in determining the documentation that will best establish the beneficiary's credentials in the given case.

O Status in Lieu of H1B

Certain fashion models may be eligible for O1 status as having “extraordinary ability” in business.2 While there are certain advantages to O1 status over H1B, the documentary requirements for demonstrating “extraordinary ability” are more extensive than the requirements for demonstrating “distinguished merit and ability” in the H1B context. A petitioner should consult with an experienced immigration attorney for guidance on whether the H1B or O1 classification should be sought. Please read our article about the O visa category to learn more [see article].

Conclusion: H1B Fashion Models

The H1B category provides an avenue for fashion models of distinguished merit and ability to work in the United States. Petitioners should consult with an experienced immigration attorney for guidance in demonstrating the qualifications of the fashion model and establishing that the nature of the proposed employment meets the rules for H1B status. Cases where there are multiple beneficiaries on the same petition or where an agent is acting as the petitioner may present issues that will require careful documentation. To learn more about general rules for H1B status that also apply to H1B fashion models, please see our collection of H1B articles in the work visas section of the website.

_____________________

  1. Neufeld, Assoc. Director, Service Center Operations, USCIS, “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions,” HQ 70/6.2.8, AD 10-24 (Jan. 8, 2010)
  2. However, fashion models may not qualify for O1 status has having extraordinary ability in the arts: see Matter of Ford Models, Inc., EAC 92-171-50797 (AAU Oct. 16, 1992) discussed in 70 No. 6 Interpreter Releases 180-81 (Feb. 8, 1993)

Resources and materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 951, Print. Treatises & Primers.

Tags: 
H1B Visa