Is your Candidate a Visa “Superstar?”
By Carl Shusterman
Carl Shusterman, Managing Partner, Law Offices of Carl Shusterman
What constitutes a true “superstar?”
This question has sparked countless water cooler debates as people are quick to argue over which figures in sports, athletics, business and other fields are the real luminaries and which ones are merely good but not quite first tier.
When it comes to recruiting top foreign born talent, there are many excellent candidates to choose from, but few true superstars, at least in the estimation of U.S. immigration law. Of the various visa categories by which foreign workers can obtain work authorization in the United States, the category for “persons of extraordinary ability” may be the most restrictive. The O-1 visa, also known as the “superstar visa” or the “Einstein visa” is reserved for those who can demonstrate bona fide elite status in their fields.
As the law states, an “alien has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation.”
A key advantage of this coveted visa is that persons of extraordinary ability may become permanent residents of the U.S. without undergoing labor certification, the time consuming process of proving that no U.S. citizen is ready, willing or able to take a particular job. Indeed, persons of extraordinary ability do not even need an employer to submit a green card petition to the U.S. Center for Immigration Services (USCIS) on their behalf. They are allowed to “self-petition” for a green card.
Following are the criteria needed to demonstrate that a candidate qualifies for a superstar visa. If a candidate cannot satisfy at least three of these ten, it is probably a good idea to try another visa category.
- Documentation of the candidate’s receipt of nationally or internationally recognized prizes or awards for excellence in his or her field.
- Documentation of the candidate’s membership in associations in the field for which classification is sought and for which membership requires outstanding achievement as judged by recognized experts.
- Published material about the candidate in professional or major trade publications or other major media.
- Evidence of the candidate’s participation as a judge of the work of others in the same field or an allied field.
- Evidence of the candidate’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance.
- Evidence of the candidate’s authorship of scholarly articles in professional or major trade publications or other major media.
- Evidence of display of the candidate’s work in the field of artistic exhibition or showcase.
- Evidence that the candidate has performed in a leading or critical role for organizations or establishments that have a distinguished reputation.
- Evidence that the candidate has commanded a high salary or other significantly high remuneration for services.
- Evidence of the candidate’s commercial success in the performing arts, as shown by box office receipts, record or video sales, etc.
Although meeting three of these ten criteria doesn’t guarantee the candidate a superstar visa, it does give recruiters at least some basis for submitting a superstar visa petition on the candidate’s behalf. Since the criteria are objective, obtaining a superstar visa can be challenging. Our law office represented a major league pitcher whose salary exceeded four million dollars a year, yet the government denied he was “extraordinary” because there were other players who made even more. We were able to cite legal cases refuting the government’s position and won the case on appeal. Superstars don’t always have to be the most experienced luminaries in their field. Our offices obtained a superstar visa for a physician who had just completed his training, but was one of a handful of doctors able to perform a highly specialized form of operation.
The key point is that true superstar status, for visa purposes, is not in the eye of the beholder but must be demonstrated through meticulous documentation. Only genuinely elite candidates need apply.
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Carl Shusterman is principal of The Law Offices of Carl Shusterman, Los Angeles, a firm specializing in immigration. He may be reached at carl@shusterman.com .
Posted by Carl Shusterman
on June 2, 2010. Filed under Recruiting, Thought Leadership.
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