In order to apply for an H-1B visa, a model must meet certain criteria. Fashion models that apply under the H-1B category, must demonstrate they are of distinguished merit and ability. 8 CFR 214.2 (h)(1)(i). In order to establish this, the fashion model must show they are prominent in the field. Prominence is defined as a “high level of achievement as evidenced by a degree of skill and recognition substantially above that ordinarily encountered.” (Matter of Shaw, 11 I&N, Dec. 277 (DD 1965) at 280). In other words, the fashion model must be well-known, leading, or renowned. A fashion model establishes “prominence” by presenting specific documentation. For example, the fashion model must show any two of the following:
(1) The model has national or international recognition, which can be evidenced by articles, news stories, or critical reviews;
(2) The model will be performing for employers that have a distinguished reputation;
(3) The model has recognition by experts or critics; or
(4) The model commands a high salary in relation to others.
A model agency must file for the model’s visa as the model’s employer. This means the agency may “hire, pay, fire, supervise or otherwise control the work” of the model. 8 C.F.R. §214.2(h)(4)(ii). As the employer of the model, the agency must prove the model will be performing prominent services. According to 8 C.F.R. §214.2(h)(4)(vii), the petitioner (employer or agent) must show a copy of the written contract or a summary of the terms of the oral agreement. The petitioner must also show that the services to be performed are for a distinguished event, production, or organization that has a distinguished reputation.
Fashion models will also have to comply with the other rules relating to an H-1B in a specialty occupation. For example, the employer or agent must obtain an approved labor condition application stating the employee (model) will receive the required wage rate. Further the employer must file a petition for the model with USCIS.
The attainability of the H-1B visa is greater than the O-1 visa because the model need only establish they have “distinguished merit and ability” rather than “extraordinary ability” in business. While the model still needs to prove some level of recognition, it is not at the level an O-1 visa would require. This leaves more room for the models who have not yet reached the notability of the elite models such as Gisele Bündchen or Adriana Lima. In order to prove recognition in their field, it is important for the model to retain tear sheets from catalogs, brochures, magazines, etc. If the fashion model is not able to obtain the H-1B visa because the H1-B cap has been filled, she or he may also try obtaining a nonimmigrant visa through the O-1 category.
Although the O-1 category does not have a quota, it requires a higher standard. Here, rather than the model establishing the lower standard of “distinguished merit and ability,” the model must prove they have an “extraordinary ability in business.” The INA defines an alien with extraordinary ability as “one who has demonstrated national or international acclaim … a record of extraordinary achievement, and whose achievements have been recognized in the field through extensive documentation, and seeks to enter the United States to work in the area of extraordinary ability.” One would think the model must demonstrate “extraordinary ability” in the arts, however the Administrative Appeals Unit concluded this is not the case. In Matter of Ford Models, Inc., the AAU specified that a model would obtain an O-1 visa only as it relates to “business” and not the “arts.” (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)).
According to 8 C.F.R. §214.2 (o)(3)(iii), the fashion model must prove extraordinary ability by documenting any 3 of the following criteria:
1. Receipt of national or international awards;
2. Membership in an organization that requires outstanding achievement;
3. Publications about the applicant in the profession;
4. Judgment of the work of others;
5. Original work of major significance in the field;
6. Evidence of authorship of scholarly work;
7. Evidence that she or he has been employed in an essential capacity at an organization with distinguished reputation; or
8. Has or will command a high salary.
Because of the heightened standard, the O-1 category would be more attainable to the very top fashion models. In addition to demonstrating extraordinary ability, a fashion model must have either a United States employer or a United States agent file an O-1 petition with USCIS for the fashion model. The petition may not be filed more than one year, but at least 45 days before the employment. The petition must also include consultations regarding the fashion model’s proposed work and qualifications, which should be written by an appropriate peer group (persons with expertise in the field).