The H1B work visa is a popular and workable option for prominent fashion models who seek to work in the U.S.
Fashion models that are internationally or nationally recognized and will be employed in a position that requires models of distinguished merit or ability may be eligible for the H1B visa.
H1B Work Visa For Fashion Models: Introduction
The H1B visa is available to fashion models that are renowned, leading or well-known in their field.
In order to be eligible for the H1B Fashion Model visa, the applicant:
- must be a prominent fashion model, and
- must be coming to the U.S. to perform services which require a model of prominence.
My Case Scenario
Amelie Dalle, a French national, is a successful model in Paris. She was recently featured on the cover of a leading fashion magazine and is well-known in European modeling circles. Model House USA, a modeling agency in the U.S., wishes to employ Amelie in their international shows which are held regularly in the U.S.
The HR Manager at Model House learned through her friends in the fashion industry that they could file an H1B petition for Amelie. But when she started researching the H1B working visa she found that most of the websites she looked at said that to qualify for an H1B visa the individual has to have a bachelor’s degree. Amelie does not have a bachelor’s degree. Additionally, the HR Manager was unclear about what her friends meant when they said the H1B visa is subject to a cap, and that they therefore needed to act quickly to be successful in their quest for an H1B petition for Amelie.
What is this H1B Cap? Will Amelie will qualify for an H1B visa?
For more information keep reading.
H1B Visa For Fashion Models: Eligibility
Fashion models who wish to work in the U.S. may apply for an H1B work visa if they meet the following requirements:
- They must be internationally or nationally recognized.
- The position offered or the services to be performed in the U.S., must require a fashion model of distinguished merit and ability or a fashion model of prominence.
- The U.S. employer must pay the fashion model, as is the case with all H1B professionals, the prevailing wage for the occupation in the area of intended employment or the actual wage being paid by the employer to fashion models of similar standing, whichever is higher.
DID YOU KNOW?
Fashion Models, unlike all other H1B professionals, do not need to have a minimum education of a bachelor’s degree.
The H1B Visa Process For Fashion Models
There are three basic steps involved in the process of obtaining an H1B visa. We will discuss all the three steps in detail.
Step 1: File An LCA With DOL
The first step in the process involves the prospective employer or agency filing a Labor Condition Application (LCA) with the Department of Labor.
The agency, in the above case, Model House USA, must list all of the locations where Amelie will be employed in the LCA. There are a few limited exceptions to this rule which we will discuss in more detail below.
Step 2: File A Petition With The USCIS
The second step is the filing of an H1B petition by the U.S. employer or U.S. agent with the USCIS (to learn more about when an agent may file a petition for a foreign fashion model, see below).
The following documents need to be filed along with the petition:
1. A certified Labor Condition Application (LCA) from the Department of Labor (from step 1)
2. Evidence establishing that the foreign fashion model is nationally or internationally recognized in the field of fashion modeling
3. Evidence establishing that the services to be performed in the U.S. require a fashion model of distinguished merit and ability and that the model either:
a. is involved in an event or production that has a distinguished reputation or
b. will be providing services for an organization or establishment that has a distinguished reputation, or record of employing persons of distinguished merit and ability
4. Copies of any written contracts between the employer or agent and the fashion model, or a summary of the terms of the oral agreement under which the fashion model will be employed, if there is no written contract.
Evidence submitted to the USCIS must include at least two of the following types of documentation:
- Evidence that the model has achieved national or international recognition in his or her field
- Evidence that the model has performed and will perform services as fashion model for employers with a distinguished reputation
- Has received recognition for significant achievements
- Commands a high salary or other substantial remuneration for services
Affidavits submitted certifying to the recognition and distinguished ability of the fashion model must specifically describe the model’s recognition and ability in factual terms.
Step 3: Apply For Visa At The U.S. Consulate
Once the H1B petition is approved, the foreign model must apply for an H1B visa at a U.S. embassy or consulate abroad. Once the visa has been granted she can fly to the U.S. where she must then apply to U.S. Customs and Border Protection (CBP) at the U.S. port-of-entry for admission to the United States in H1B classification. It is the U.S. Customs Agent at the port-of-entry that makes the final decision on whether the foreign model will be allowed to enter the U.S., and if so, in what status and for how long.
If the foreign model is already in the U.S. in a valid immigration status, she may apply for a change of status to H1B through the USCIS. However, it must be noted that the Visa Waiver Program (VWP) does not allow a person to change his or her status.
5 factors to consider while filing an H1B petition for Fashion Models
I. Who Can File H1B Petition For A Fashion Model?
An H1B petition for a fashion model can be filed by:
A. A United States Employer:
1. having an IRS Tax identification number,
2. which engages the fashion model to work within the United States, and
3. has an employer-employee relationship with that model.
NOTE: Employer-Employee relationship is very important to the USCIS and may be evidenced by the fact that the employer may hire, pay, fire, supervise or otherwise control the work of such model.
B. A United States Agent, in cases involving fashion models:
1. who are traditionally self-employed, or
2. who use agents to arrange short-term employment on their behalf with numerous employers.
NOTE: The United States agent may be the actual employer of the model, or the representative of both the employer and the model.
When a petition is filed by a United States agent, the supporting documentation must include a complete itinerary of services or engagements.
C. A United States Agent, in cases where a foreign employer authorizes the agent to act on its behalf.
DID YOU KNOW?
1. Fashion models coming to the U.S. on an H1B working visa may be admitted to the U.S. for an initial period of up to three years.
2. Extensions of stay may also be granted, but generally the total period of stay cannot exceed six years. After a foreign national has been in the U.S. in H1B status for six years she may have to leave the U.S. and will have to remain outside the U.S. for at least one year before she can re-enter the U.S. on a new H1B work visa.
3. There are exceptions to the maximum six year period of stay.
a. When the fashion model’s stay(s) in the U.S. are intermittent, seasonal, or on aggregate less than six months a year, the six year cap does not apply.
b. The H1B can be extended beyond six years if the model is in the process of filing an employment-based green card application.
II. Job Location
Generally, when filing a Labor Condition Application (LCA), an employer must list all the locations an employee is intended to be employed and employees are required to work within the geographic area of intended employment. Even after an H1B is approved, employers are required to file a new LCA when an employee is moved to a new geographic area.
This requirement can be quite burdensome for modeling agencies and employers as models can be traveling all over the country for shoots and fashion shows.
There are exceptions to the above requirement that allow models to work all over the U.S. without the need for a new LCA:
A. No new LCA needs to be filed when the model travels to a location:
1. for model’s developmental activity, or
2. to fulfill the requirements of a particular job function.
NOTE: For the purpose of (2) above, the following conditions must be met:
a. The H1B model’s presence at the different location is casual and on a short-term basis (i.e., any single visit does not exceed five consecutive workdays for any model who travels frequently or ten workdays for any model who travels occasionally);
b. The nature and duration of the H1B model’s job function (rather than the nature of the employer’s business) mandates his or her short-time presence at a different location.
3. An employer may place an H1B model in short-term placement without filing a new LCA for the temporary geographic area if such placement at any site in an area of employment does not exceed 30 workdays (consecutive or non-consecutive) within a one-year period.
The geographic area of intended employment means the area within normal commuting distance of the place of employment, or worksite, where the H1B fashion model is or will be employed.
The USCIS describes the ‘Place of Employment’ as the worksite or physical location where an H1B fashion model actually performs his or her work.
The LCA will apply to any worksites within this ‘area of employment’.
III. H1B Visa Cap For Fashion Models
There is an annual numerical limit of 65,000 H1B visas available each fiscal year, which includes 6,800 that are set aside for nationals of Chile and Singapore under the Free Trade Agreements with those countries. The H1B for Fashion Models is included in this cap.
The filing season for cap H1B’s opens up on April 1st as H1B petitions for positions starting on or after October 1, the first day of the fiscal year, may be submitted up to 6 months ahead of the requested start date.
The spouse and unmarried children under the age of 21 of an H1B Fashion Model may apply for H-4 visas. An H-4 nonimmigrant may study in the U.S., however, they may not engage in employment while in the United States.
IV. H1B Visa Portability For Fashion Models
The H1B portability provisions allow a Fashion Model working in the U.S. on an H1B visa to begin working for a new H1B employer as soon as the new employer files an H1B petition for him or her, provided he or she has been lawfully admitted into the United States, has maintained their status, and the new employer has filed a “non-frivolous” petition. The new petition must be filed with the USCIS before the Fashion Model’s current status expires. Further, maintaining status subsequent to their lawful admission, means that the fashion model must not have been employed without authorization.
DID YOU KNOW?
A fashion model who has been counted towards the H1B cap as a model can later change jobs, if eligible, to a specialty occupation if they have the requisite bachelor’s degree or higher or equivalent.
V. O-1 Visa: Alternative To H1B Fashion Model Visa:
An alternative to the H1B visa for fashion models is the O-1 visa. The O-1 visa is for fashion models of ‘extraordinary merit and ability’. Extraordinary merit and ability is demonstrated through sustained national or international acclaim.
The benefit of the O-1 visa is that it is not subject to annual quotas and does not require that the employing modeling agency obtain LCA certification from the DOL prior to the filing of the O-1 petition with USCIS. However, to qualify under O-1, fashion models must establish extraordinary ability in business, not in the arts. Extraordinary ability in the field of business means a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor. This requirement is significantly higher than the “distinguished merit or ability” requirement of H1B work visas for Fashion Models.
A Fashion Model may be employed by more than one employer (petitioner) at any given time, however, a separate ‘concurrent’ petition must be approved for each employer. Additionally, fashion models are allowed to engage in part time employment while in the U.S. on an H1B visa.
My Case Scenario
Model House USA realized that although Amelie does not have a bachelor or higher degree, she can still qualify for H1B classification. All they have to do is establish that she is a fashion model that is internationally or nationally recognized and that the services she is going to perform requires a fashion model of prominence.
Model House advised Amelia that once they received an approval of the H1B petition filed on her behalf she will need to apply for her H1B visa at the U.S. Embassy in Paris. At that time she must undergo the visa interview process to obtain her H1B visa.
Model House USA consulted an Immigration Expert and following their advice, were successfully able to obtain an H1B visa for Amelie.
The eligibility of a foreign fashion model who is internationally or nationally recognized, and the prominence of services to be performed in the U.S. must be clearly evidenced and established. If the eligibility criteria is not properly presented, it will have an adverse impact on the outcome of the H1B petition.
VisaPro immigration lawyers regularly qualify foreign fashion models for H1B and O1 visas and help showcase their modeling talent in the U.S.
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