Options for Fine Artists Applying for a US Visa

by Ashley Emerson Mendoza

I love that in New York City art is everywhere—there’s graffiti on the side of buildings; sculpture installations throughout the streets and parks; and a huge variety of galleries and museums with artwork ranging from modern multimedia exhibitions to Renaissance paintings.

Since we are based in a city that is a center of the art world, and we often work with some of the best of these artists, we wanted to highlight some immigration considerations in the context of the fine art world, namely for gallery and museum artists.

The O-1 is often a great option for a fine artist
The O-1 visa is for foreign nationals who have “extraordinary ability” in their field. While available to those in many different fields, it works especially well in the context of artists who are creating unique art. Fine artists must demonstrate that they are distinguished, with a level of skill and recognition substantially above that ordinarily encountered, and they must be recognized as prominent in their field. There are several ways to show this, including:

  • A display of the artist’s work;
  • Reference letters about the artist from experts in the fine arts;
  • Exhibiting artwork in the best or most notable galleries and/or museums and art shows;
  • Press coverage about the artist;
  • High earnings for the artist;
  • Value of the artwork; or
  • Awards for the artist.

Take Dietrich, for example, a hypothetical fine artist from Berlin. Known for his bright and bold modern paintings, his works have been shown in galleries in such places as Berlin, London, and Paris for the last six years. He has shown at The Venice Biennale (where he received excellent reviews) and he has been interviewed in such major publications as Der Spiegel, The Guardian, and Le Monde. He also has an extensive list of individuals who would provide references for him. He would be an ideal candidate for the O-1.

O-1s are issued for the duration of the project in the US up to a maximum initial period of three years, and there is no limit on how many times it can be renewed as long as the artist remains extraordinary in the fine arts field. While the O-1 is not the only option, it certainly works very well for established artists. Less established artists can explore other options (some of which we discuss below).

Agents or galleries usually sponsor the O-1 (and sometimes an agent is a better option)  
The O-1 must be sponsored by a US company. The basic terms of the O-1 dictate that the artist is only authorized to work in their field through the sponsor. While there is no such thing as a freelance visa in the US, one reason the O-1 is so popular is that it can often provide the visa holder some flexibility depending on who sponsors their O-1.

A US-based agent may sponsor an O-1 for the fine artist. This “agent” could be the artists’ actual agent or manager in the US with whom they have a contract. It could also be a representative of their foreign agent. Or the agent could also be the gallery where the artist will work, providing the gallery is happy to represent the artist in addition to showing their work.

Since fine artists are typically self-employed, agents allow them to continue to function as they did in their home country in that they can have multiple projects and activities as long as they identify those projects in a detailed itinerary, which (get excited!) we’ll discuss next.

Most O-1s for fine artists require an itinerary (as well as a union advisory opinion letter or peer letter)
The immigration regulations require all O-1 petitions to include an explanation of the nature of the event(s) foreign nationals are coming to the US to participate in, beginning and end dates for the event(s), and, if applicable, a copy of any itinerary for the event(s). The idea behind this requirement is to demonstrate to US Citizenship & Immigration Services (USCIS) that foreign nationals are coming to the US to engage in actual work (not just to go to cool parties).

While it is relatively straightforward to describe the event the artist is coming to the US to participate in as the agreed upon representation by the US agent and also to select the start/end dates, providing an itinerary can be problematic. As anyone in the fine arts industry knows, it is not always realistic to have exhibitions, commissions, and other projects booked three years (or three months for that matter) in advance.

For this reason, the itinerary is one of the more complex elements of the O-1 petition. The O-1 sponsor will need to provide USCIS with enough information to satisfy their desire to know that the artist will be coming to the US for definitive work. The good news is that USCIS has recognized that satisfying the itinerary requirement will vary by industry, and advised its O-1 adjudicating officers to be flexible with this requirement based on industry standards.

In addition, depending on the medium in which they work, fine artists may need to obtain for their O-1 (and for some P) petitions an advisory opinion letter from the appropriate union; or, if no union exists for artists in their field, they may need to obtain a peer letter. For example, photographers will need to consult The International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States (IATSE); painters would most likely need to obtain a peer letter from an industry expert. A qualified immigration attorney can advise whether it is appropriate to obtain the advisory opinion or peer letter.

Sometimes the O-1 is not the best option
When the artist’s background and experience does not rise to the O-1 level of “extraordinary” (don’t worry, that’s not to say the artist isn’t talented), other options may be available.

One alternate option may be the P classification. There are two types of P visas available to fine artists, and both have very specific requirements. The first is the P-2 visa, and is appropriate when the artist is coming to the US to participate in a reciprocal exchange program between a US organization and a foreign organization that provides for the temporary exchange of artists.

The second is the P-3, and is appropriate when the artist is coming to the US to perform, teach, or coach a program that is culturally unique. Similar to the O-1, P-2 and P-3 visas must be sponsored by a US company or agent and have an itinerary requirement. Unlike the O-1, P-2 and P-3 visas can only be granted for a maximum duration of one year at a time, but only as long as the event in question.   

The Q visa is an additional possible option for artists who are coming to the US to participate in a cultural exchange program approved by the Attorney General. Under the Q-1, fine artists are authorized to engage in both practical training and employment as long as they share the history, culture, and traditions of their home country as well. Q-1 visas can only be granted for the duration of the event but no more than a maximum duration of fifteen months, and foreign nationals must remain outside the US for one year before being granted subsequent Q-1 status.

There are also other visa options for fine artists at the beginning of their careers. For example, fine art students may obtain an F or J visa through their school programs. The J-1 may also be a good option for fine artists who would like to participate in an exchange through an internship or training program in the US.

J-1 visas for internships or training programs can only be granted for a maximum duration of twelve to eighteen months. It is also important to note that in some circumstances the J-1 imposes a residency requirement, specifying that foreign nationals must return to their home country for two years following the completion of their exchange program.

Finally, it is important to consider whether a fine artist needs a visa at all. There are circumstances where certain activities would be permissible in the US under the ESTA/Visa Waiver Program.

Fine artists are limited in what they can do under the ESTA/Visa Waiver Program
Foreign nationals cannot do any productive work in the US as visitors. Immigration generally considers productive work to be any work performed in the foreign national's field of endeavor that would generate compensation. This is the case regardless of the nationality of the client for whom the foreign nationals are working, and even if the artist is not paid for their work.

As visitors, foreign nationals are generally permitted to engage in commercial transactions which do not involve gainful employment in the US, as well as to negotiate contracts and consult with business associates. There are also a few exceptions to the general rules, specifically carved out for the fine art fields.

For example, under very specific circumstances, the regulations allow some still photographers to enter the US as visitors to take photographs, provided they receive no income from a US source. The regulations also permit some artists to come to the US to paint or sculpt providing they are not under contract with a US employer, and they do not intend to regularly sell the artwork in the US.

To ensure that fine artists from around the world continue to come to the US to participate in the thriving art community, they should consider consulting with an experienced immigration attorney prior to traveling to the US to ensure their artistic undertakings in the US are authorized. If they plan to obtain work visas, an experienced immigration attorney can be invaluable in navigating the immigration process to obtain the most appropriate visa.

I look forward to seeing the newest works from international fine artists here in New York City!