Special Considerations for Film and Television Visas

by Daryanani Law Group


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As awards season wraps up, the glitz and glamour of the film and TV industry will once again be replaced by the daily grind of producers, directors, editors, costumers, writers, set designers, and the countless other crew members working behind-the-scenes of the on-air talent to bring the productions that entertain us to life. As such, there is perhaps no better time to discuss certain considerations to keep in mind when planning a shoot with foreign talent or foreign production crew members in the United States. While these issues are not unique to film and TV immigration cases, they do present themselves more acutely in this context. Given the tight turnaround times and often last minute nature of the film and TV production industry, it is important to plan ahead as much as possible and pay special attention to certain issues that may come up during the process when filing petitions with US Citizenship and Immigration Services (USCIS) and when applying for visa stamps at a US Embassy or Consulate abroad.

Documentaries or News Shoots
As we also discussed in a previous post (with a helpful chart even), the I visa is a non-immigrant visa for representatives of a foreign media organization who are temporarily traveling to the US to engage in their profession. Generally, only those whose activities are associated with journalism, the news-gathering process, or informational documentaries may qualify for I visa classification. The I visa should not be used for commercial or entertainment programming, including reality entertainment shows, scripted programs, the filming of staged or recreated events, or documentary dramas.

Examples of those who may qualify for I visas include: print, radio, and TV journalists, photojournalists, and members of foreign production teams engaged in filming a news event or informational documentary, including producers, directors, editors, presenters, and technical crew. These production team members can either be primary employees of a foreign media organization or contracted workers with foreign independent production companies.

US Embassies and Consulates are becoming stricter on which productions and individuals may qualify for an I visa to cut down on the historical misuse of these visas. In the past, some individuals approved for I visas have used them to work for subsequent, non-qualifying entertainment programs or for US-based production companies, neither of which is allowed under the I visa. In order to curb this abuse, some US Embassies/Consulates have recently begun limiting I visa durations to six months or less, even though they have traditionally been approved for periods of five years.

It is important to keep in mind that I visas do not allow an individual to work for anyone in the US or on any program. If the program that an applicant is traveling to the US for is not an informational documentary or related to news-gathering, then they will be required to apply for another type of visa, such as the O visa discussed below.

Entertainment, Scripted Programs, and Films
O visas are appropriate for production teams seeking to enter the US to work on entertainment or scripted programs and films. O visas are typically granted for a specific event, such as the shooting of a particular feature film or TV series in the US. O visas can be valid for up to three years, but are generally approved for the duration of the specified event or series of events.

There are two O visa options for TV and film crews: the O-1 for individuals with “extraordinary achievement” in motion picture or TV production, and the O-2 for the essential team members of certain O-1 visa holders. Together, these visas can be used to allow entire production teams to enter the US to work on a film or TV program.

In practice, the O-1 should be reserved for the most accomplished member of the production team, typically the Executive Producer, Director, or Lead Actor/Actress. Although the evidentiary requirements for an O-1 candidate in the film and TV industry are lower than other O-1 visa categories that apply to different fields, it is still a relatively high threshold to meet.

To qualify for the O-1 in the film or TV industry, the candidate must demonstrate “extraordinary achievement” as evidenced by either a major, national, or international award or nomination (i.e., an Academy Award, Emmy, or BAFTA, etc.) or a combination of evidence, including a history of working on prominent productions and with companies of a distinguished reputation, press discussing the individual and/or their productions, commercial success, high salary, reference letters from industry experts, and other prestigious awards and nominations, to name a few.
 
To qualify for an O-2 visa, each candidate must either have a long-standing working relationship with the O-1 candidate or, in the case of a specific film or TV program, if significant production (including post-production) is taking place outside the US, then the O-2s can be approved on a “continuity of production” basis by demonstrating that they are essential to the successful completion of the production. There is a common misconception that the O-2 has to play a supporting role. This is not true: the O-2 can be any essential member of the team.  

Unlike the I visas, which are sponsored by foreign (non-US) media organizations, O visas must be sponsored by a US entity, typically a US production company or TV network. Moreover, O visa petitions must first be approved by USCIS before applicants can attend their visa interview at a US Embassy/Consulate abroad. This results in a longer process than the I visa, which can just be applied for directly at the US Embassy/Consulate with no prior USCIS approval needed.

Unions
Before an O-1 or O-2 petition can be filed with USCIS, the petitions must first be submitted to the applicable US labor unions as well as a US management organization to obtain “Advisory Opinion” letters. The union letter provides USCIS an opinion on the merits of the petition, from an organization that has expertise in the foreign national’s specific field and area of ability.

The unions typically take anywhere from three to ten business days to issue their advisory opinion letters. If the unions agree with the petition, they will issue a letter stating they have no objection to the issuance of the visa. But if they do not agree, they will provide an objection letter. While these letters are “advisory” and not binding upon USCIS, an objection letter can make it more difficult, though not impossible, to have the petition approved. It largely depends on the reasons cited for the objection, which can sometimes be successfully rebutted by an attorney with experience in preparing visa petitions for the film and TV industry.

The good part about this requirement is that if the unions issue no objection letters, the petition has a strong likelihood of being approved by USCIS. The bad part is that it adds a step to the O application process, extending the timeline needed to approve an O visa even further.  

Sponsors
Like pretty much every US work visa, the visas obtained for film and TV productions are specific to the entity that sponsored them, be it the foreign media organization in the context of the I visa or the US-based TV network or production company for the O visa; however, the particular idiosyncrasies of the industry often make these visas project specific as well.

For the I visas, some US Embassies/Consulates have begun annotating the visa stamps to include the name of the foreign media organization sponsoring the visa and sometimes even the production that was outlined in the visa application. Even if no annotation is made on the I visa stamp, it still does not mean that the foreign national can use it to work on any production or for any company.

O visas are project specific as the union consultation requirements for O visas result in the unions wanting to see specific contracts and production schedules for each film or TV production outlined in an O visa petition. Also, individuals in film or TV are often hired weeks or days before a project starts so it is unlikely an individual knows what project he/she will be working on in three years. Add that individual production companies are often set up per film, it becomes very difficult to have an O-1 approved for multiple productions. One exception is if the O petition is filed by an agent, with signed contracts with each network or production company lined up in advance. Absent this, it becomes very difficult to get an O visa for an actor or any member of a production staff beyond a specific shoot or series of shoots.

Timing
Perhaps the most important consideration when it comes to planning US visa applications for individuals in the film and TV industries is timing. There is rarely enough time. Productions often identify key people late in their planning and contracts may not be signed until the very last minute. Given the multiple steps that need to be completed before an O visa can be issued, including the drafting of the visa petitions, preliminary filings with US labor unions and management organizations, the filing of visa petitions with USCIS, and the scheduling of visa appointments and visa processing by the US Embassy/Consulate, attorneys often require more time than they have. It’s one of the toughest aspects of getting visas for TV and film shoots in the US. For that reason it is important to plan ahead as much as possible.

Since I visas are issued at the US Embassy/Consulate and do not require prior USCIS approval, they generally require less lead time than O visa applications. Typically, a foreign national can have the I visa within a week depending on appointment availability at the Embassy/Consulate and barring any administrative or security issues.

Visa Waiver and B Visas
There are several instances in which participants in a film or TV production may not require a work visa and can instead enter the US on a visa waiver (ESTA) or get a visitor (B) visa. For example:

  • Location scouting. In this case, it is useful to have supplementary material evidencing the purpose of the trip, such as invitations to check out particular shoot locations;
  • Research;
  • Attending award shows, trade shows, or conferences;
  • Participation in business meetings in the US in connection with ongoing employment in foreign national’s home country; and
  • Negotiating a contract for a production.

Any actual productive work on a film or TV production beyond these capacities would more than likely require a US work visa.

Conclusion
Notwithstanding the idiosyncrasies of the visa process, we see more and more international TV and film productions choosing to shoot in the US, some of which are even shot right outside our office windows in the Meatpacking District! We are always excited to see these shows, and to assist networks and production companies with any projects in the US. Perhaps a cameo in one of them is in the cards for us!!