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.
H-1B
Status
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
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.
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:
- 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
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.
