Nonimmigrant Options for Fashion Models
Written by Henry J. Chang
There are nonimmigrant several options available to fashion models. However, many fashion models will seek nonimmigrant classification under H-1B status as models of distinguished merit and ability. Those who are able to sustain the higher standard for the O-1 category may seek such classification for added flexibility. Both will be discussed briefly.
Prior to April 1, 1992, the H-1B category applied to persons of "distinguished merit and ability". The standard of "distinguished merit and ability" was defined in the regulations as "one who is a member of the professions or who is prominent in his or her field.
On October 1, 1991, the Immigration Act of 1990 ("IMMACT 90") deleted the term "distinguished merit and ability" from the general H-1B description while also creating the O and P nonimmigrant classifications. However, the Armed Forces Immigration Adjustment Act of 1991 delayed the implantation of this change until April 1, 1992. The Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 ("MTINA"), which was enacted on December 12, 1991, restored the standard of "distinguished merit and ability" to the H-1B category, but only as the qualifying standard for fashion models.
As a result of MTINA, the INS regulations specifically provide for a grant of H-1B to a fashion model of distinguished merit and ability, that is, "one who is prominent in the field of fashion modeling." The INS defines "prominence" as 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."
The alien must also be coming to the United States to perform services which require such prominence. To establish that the proposed position requires prominence, the petitioner must show that:
The petitioner can establish the beneficiary's distinction as a fashion model by submission of two of the following types of documentation, namely, by showing that he or she:
- the services involve events or productions which have a distinguished reputation; or
- the organization for which the services will be performed has a record of hiring prominent persons.
- 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;
- has performed and will perform services as a fashion model for employers with a distinguished reputation;
- has received recognition for significant achievements from organizations, critics, fashion houses, modeling agencies, or other recognized experts in the field; or
- commands a high salary or other substantial remuneration for services evidenced by contracts or other reliable evidence.
The other rules relating to an H-1B in a specialty occupation will also apply to the fashion model, including the requirement to obtain an approved labor condition application. Further information regarding the H-1B category in general appears here.
O-1 status is available to aliens of extraordinary ability in the arts, sciences, education, business and athletics. A fashion model who is of extraordinary ability may qualify for O-1 status. However, he or she will have to meet the ordinary requirements for O-1 eligibility.
One would expect that a fashion model could qualify for O-1 status as an alien of extraordinary ability in the arts. However, in Matter of Ford Models, EAC 92 171 50777 (AAU Oct. 16, 1992), the Administrative Appeals Unit held that modeling was not an art. In that decision, a fashion model's O-1 petition was approved on the basis of extraordinary ability in business.
To qualify as an alien of extraordinary ability in science, education, business or athletics, the Immigration Regulations indicate that the petitioner must:
- have received a major, internationally-recognized award, such as the Nobel Prize, or
- meet at least three of the following requirements:
- receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
- membership in associations in the field which require outstanding
achievements of their members;
- published material in professional or major trade publications or major media about the alien concerning the alien's work in the field;
- participation on a panel, or individually, as a judge of the work of others in the field;
- scientific, scholarly, or business-related contributions of major significance in the field;
- authorship of scholarly articles in the field in professional journals or other major media;
- employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation;
- high salary or other remuneration commanded by the alien for services; or
- other comparable evidence;
In Matter of Ford Models, the Administrative Appeals Unit approved O-1 status for a fashion model on the basis of only one factor, her high salary. While a fashion model may qualify as an O-1 alien solely on his or her high salary, it is nevertheless advisable to submit as much evidence of extraordinary ability as possible to ensure a favorable INS adjudication.
Further information concerning the O-1 category in general appears here.