O-2s in America

by Jacki Granet

There is the old adage, “It takes a village to raise a child,” and the same is true (well, the village part, not the child part) for many artists and athletes working in the US on an O-1 visa. Indeed, behind many leading photographers, directors, athletes, actors, make-up artists, and other O-1 holders here in the US, there is often an individual or team of qualified, experienced, and essential support personnel in O-2 status who have worked extensively with the O-1 beneficiary over the years and who ensure every project runs smoothly.

Who can use the O-2?
The O-2 classification is for essential support personnel of an O-1 artist or athlete. A photographer’s assistant or retoucher, members of a graphic design team, members of a film crew, actors, or other such personnel, may qualify for the O-2 visa. There is no enumerated list of qualified positions. Moreover, more than one support personnel member can apply for O-2 classification with the same O-1.

What are the requirements to obtain an O-2?
O-2 beneficiaries must prove that they are “an integral part of such actual performance” and have the “critical skills and experience with the O-1 that are not of general nature and which cannot be performed by other individuals.”

For example, if the O-1 holder is a photographer, then the O-2 assistant would be required to have critical skills needed for the completion of the project, such as having advanced knowledge and familiarity with the unique photographic techniques, methods, and stylistic preferences of the photographer, knowing what type of film to use, how the O-1 likes to position the subjects, where to place the lighting, on-shoot photo re-touching skills, and critical photographic skills that can only be obtained by a working relationship with the photographer.

While there is no enumerated timeframe that the O-1 and the potential O-2 should have worked together before applying for the O-2 classification, it is necessary that potential O-2 beneficiaries possess skills that are not general in nature and that are essential to the completion of the O-1’s work. Additionally, O-2 applicants must also maintain a foreign residence that they do not intend to abandon.

Does the O-2 have to be “behind-the-scenes”?
No, not necessarily. The heart of the O-2 visa category is essentiality. Thus, if the O-1 visa holder is a film director, it is possible to have an actor appearing in the project as an O-2, assuming all other requirements are met. And what’s more essential to a film project than onscreen talent?

Who cannot use it?
The O-2 classification is not available to the essential support staff of every O-1 visa holder. Only O-1B visa holders are able to have O-2 essential support staff/assistants. Thus, for O-1A visa holders in science, business, or education, the O-2 visa is not available for their essential support personnel.

How does one apply for an O-2?
The sponsoring company (same as the O-1’s sponsor) must file a petition with US Citizenship & Immigration Services (USCIS) on behalf of the O-2 beneficiary. Similar to the O-1 petition, the O-2 petition must contain a peer group advisory opinion and, in many cases, an itinerary. The petition must include evidence that the O-2 is essential to the O-1 including affidavits from clients or contracts for projects they have worked on together in the past. The O-1 and O-2 can apply at the same time or the O-2 can apply after (however, not before the O-1).

Once the petition has been approved by USCIS, in most cases the O-2 beneficiary will have to go to a US Embassy or Consulate abroad and obtain a visa stamp.

Can multiple O-2 beneficiaries apply?
Yes. For example, a film director who is in the US under O-1 classification requires three assistant directors for the project she is working on in the US. The US-based company that sponsored her O-1 can file one petition for O-2 classification on behalf of all three assistant directors.

How long is the O-2 valid?
The O-2 petition will only be valid as long as the corresponding O-1 petition is valid. Thus, if the O-1 is valid for six months, the O-2 will only be valid for six months. The maximum duration of an O-2 is three years, just like the O-1. In addition, O-1s and O-2s are permitted to apply for one-year extensions while in the US working for the same event.

What about family members?
Yes, spouses and children of an O-2 beneficiary may obtain O-3 visas to accompany the O-2 to the US; however, O-3 beneficiaries are not permitted to work in the US.

What happens if the O-1 leaves the sponsor?
The O-2 beneficiary’s maintenance of status is tied to the O-1 beneficiary. If the O-1 leaves the sponsor, the O-2 will not be authorized to work for the sponsor or the O-1 in the US unless an O-1 change-of-petitioner is filed and approved, or alternative work authorization is obtained.

What projects can the O-2 work on?
The O-2 is only authorized to work on those projects on which the O-1 will work.  The O-2 beneficiary may not work on any projects independent of the O-1 even if they are represented by the sponsor.

Does a potential O-1 and O-2 working in the motion picture or television industry also have to show a longstanding relationship?
For O-2 beneficiaries working on motion picture or television productions, the regulations state that the beneficiary must have “critical skills and experience which are not general, and which are based on a preexisting long-standing working relationship.” Again, there is no official amount of time defined to fulfill this requirement; however, in the case of specific productions, “a long-standing relationship is unnecessary where there is significant pre- or post-production work that will take place in- and outside US, and the person’s presence is needed for successful completion.”

For example, if a sound editor has been working with the production team on a specific project abroad during pre-production, and filming is set to move to the US, the petition could argue that the sound editor’s presence is needed during filming in the US for the successful completion of the project as that sound editor knows the project details, understands the sound-related expectations, is familiar stylistically with the project, and, of course, has already begun working on the project abroad.

So the next time the winner is on stage at the Oscars, Emmys, Grammys, or the BAFTAs, and people are thinking “Why won’t that person wrap up the speech already…start the exit music!” it will be clearit really does take a village (of O-2s).