O-1 FOR SOCIAL MEDIA INFLUENCERS AND BLOGGERS
Social media influencers with large online following can qualify for an O-1 visa or EB-1 green card which are often referred as “talent visas” or “extraordinary ability green cards”.
Youtube and social media have come into play by popularization, monetization and views. However, the O-1 regulations were written long before the social media boom. USCIS (US Citizenship and Immigration Service) slowly moves to accept the next normal, and today social influencers and bloggers can dip a toe in the water in the US.
The O-1 is a nonimmigrant visa for professionals of extraordinary ability who sustained national or international acclaim who is coming temporarily to the U.S. to continue work in the area of extraordinary ability.
The EB-1A is an immigrant visa (green card) for professionals of extraordinary ability who sustained national or international acclaim.
In this article we will go over the O-1 requirements applicable to social influencers and bloggers that should hopefully help you to understand if you can qualify for this visa type.
The O-1B category can be used for media influencers. A candidate shall receive a major prize or award or meet at least three criteria from the list below.
Criterion 1. Lead or starring role in productions or events that have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, contracts, or endorsements.
In real life, prominence and acclaim of a media influencer is evaluated by a number of followers and audience engagement in social media: Youtube, TikTok, Instagram, etc. Views and likes fuel monetization and popularity of media influencers and provide the basis for recognition and prominence. Series of posts, channels, stories can be qualified as productions or events for the purpose of this criterion. Evidence related to the candidate’s role in these productions can be used for this criterion.
However, the candidate should be ready for a push back from USCIS in connection with using videos, stories and posts as productions or events and questioning the views and likes as measurement of popularity. This argument can be rebutted by providing evidence that the views and likes are calculated by objective and trustworthy methods and must be considered as objective indicator of a distinguished reputation of a production or event.
USCIS may also attempt to impose a narrower standard than the one provided in the regulation by stating that publications in social media cannot be considered as “major media”. This challenge can be overcome by showing the viewing statistics of social media publications. In addition, there is no requirement for publications to be only in major media for the purpose of satisfying this criterion.
Criterion 2. Evidence that the beneficiary has achieved national or international recognition for achievements, as evidenced by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications.
Media influencer activities are usually accompanied by a large number of publications and reviews. Influencers often appear in major magazines and publications. The most valuable will be publications with positive reviews, as well as those that will help to assess the candidate’s recognition compared to other social inflators. The candidate’s high number of followers, prestigious contracts, photos of participation in distinguished events, audience engagement reflected in publications can be used to demonstrate the required level of prominence.
Criterion 3. Evidence that the beneficiary has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation, as evidenced by articles in newspapers, trade journals, publications, or testimonials.
Usually social influencers establish their own companies or sole proprietorships. In this case, they can use the activity in the own company for this criterion. In order to meet this criterion, there is no need to have an employment contract with your company. Moreover, the organization may not be a registered legal entity. It would be required to demonstrate that the candidate’s company has a distinguished reputation by providing information on large number of following, major contracts with distinguished commercial brands, collaboration with other influencers and media resources.
Criterion 4. Evidence that the beneficiary has a record of major commercial or critically acclaimed successes, as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications.
For this criterion, the candidate can use awards, awards, titles, ratings on the national or international level and any evidence that the candidate has achieved success.
Criterion 5. Evidence that the beneficiary has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the beneficiary is engaged. Such testimonials must be in a form which clearly indicates the author’s authority, expertise, and knowledge of the beneficiary’s achievements.
The letters should contain information about the candidate’s achievements. Other prominent social influencers or bloggers may serve as experts. If the candidate successfully collaborated with commercial brands, the commercial brands could provide letters which should describe collaboration in detail and how the collaboration impacted the brand’s popularity and recognition. Collaboration as a brand ambassador can also be used for the first criterion.
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Criterion 6. Evidence that the beneficiary has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence.
The candidate shall provide detailed information on payments received from various sources and platforms related to her social media professional activity (Google, Apple, etc.). Tax returns can be used as evidence, but they should clearly reflect that the income derived from social media activities. The candidate may also demonstrate that she will receive high income on arrival in the U.S. by providing contracts, deal memos and other arrangements.
Employment
The O-1 visa petition is signed by a potential employer or agent in the United States. A traditional employment arrangement in most cases is not a good fit fora social media influencer, but using an agent agreement can provide good alternative to arrange work in the U.S. However, just having an agent agreement will not be enough. The candidate will need to provide a detailed itinerary describing the projects he/she will be engaged in, period, location, compensation for work in the U.S. for one or several companies. The candidate can receive compensation for her future work in the US either directly through the agent or from the companies he/she intends to work with in the US.
Advisory Opinion / Consultation Letter
One of the requirements for obtaining an O-1 visa is to provide an Advisory Opinion Letter from a professional association in the relevant area, in which the association confirms the extraordinary ability / achievement of the candidate and provides a “no objection” statement to the approval of the O-1 visa. There is no professional association or labor union in the United States for bloggers or social media influencers (Index of O-1 professional unions). In order to meet this requirement, a candidate will need to get an opinion of a very well-known media influencer or blogger in the United States. Be prepared that USCIS might question the evidential value of the record, however, the regulation is on the candidate’s side setting that when no professional association exists, an expert letter can be used.
The Premium processing is available for O-1 petitions. The candidate can receive a decision within 15 days utilizing the Premium processing service. After receiving approval from USCIS, the candidate can apply for a non-immigrant visa with the U.S. Consulate / Embassy.
There are many nuances in presenting evidence for an O-1 petition for social media influencers where most applicants do not fit the traditional professions for which the regulations were written. USCIS tends to interpret many criteria restrictively. USCIS often fails to keep up with time and does not always understand the importance of social media and the changes taking place. The attorney’s task is to explain the importance of evidence in the field of social media to USCIS in the supporting letter, as well as to explain the application of the regulatory criteria to new realities. Our attorneys are closely following changes in USCIS practice and will be glad to assist with all aspects of obtaining an O-1 visa for social media influencers and bloggers.
You can send us a request for a free assessment of your O-1 potential case by sending us an email or by using the Contact form.
