Obtaining a US work visa can be a complex and daunting process. To obtain an O-1, for example, petitioners/sponsors must gather evidence to establish that the foreign national they wish to employ or represent is extraordinary. This evidence may include press citations, critical reviews, samples of the foreign national’s work, contracts, endorsements, testimonials, and evidence of high salary, among other items. So it’s understandable that after all the evidence is obtained and the O-1 petition is prepared and signed, many petitioners and their foreign national beneficiaries are surprised to find out that before their cases can be filed with US Citizenship & Immigration Services (USCIS), the petitioner/sponsor needs to obtain a “consultation letter” from a relevant labor organization or peer group.
What? The foreign national isn’t part of any US union! Why does it matter what the union thinks? This doesn’t make any sense! Although many would rather understandably skip this step, it is nevertheless a requirement, and so here we answer the most frequently asked questions regarding these union or peer group consultation letters including what to do when there is not an appropriate union in the foreign national’s field.
Why is a consultation required for O visas?
All O-1 and O-2 petitions must include advisory opinions (also called consultation letters) from the relevant labor organizations (that is, unions) governing their professions in the United States. (O-1s are for individuals with extraordinary ability or achievement and O-2s are for essential support personnel.) If the O-1 petition is for an individual with extraordinary achievement in motion picture or television, the consultation must come from an appropriate labor union and a management organization with expertise in the beneficiary’s area of expertise. These advisory opinions assist USCIS in assessing the extraordinary talent or essentiality of the beneficiary by enlisting experts in the field to review the petition materials first and provide just that: advice. The unions or peer groups evaluate the foreign national’s credentials in light of the USCIS regulations for the O and determine if the person is eligible as compared to the other people in their field of expertise.
Specifically, the labor or management organization examines the O-1 or O-2 petition regarding the nature of the work to be done and the foreign national’s qualifications. If the labor organization believes the foreign national is qualified for the O visa, the advisory opinion letter typically states that they have “no objection” to the issuance of a visa in that particular case. If the labor organization does not believe the foreign national is qualified, the advisory opinion must set forth a specific statement of facts which supports the conclusion reached in the opinion.
While consultation letters are required for the petition, labor organizations do not have the final say, even if they issue a letter objecting to the petition. A letter from the Directors Guild of America (DGA), for instance, stating that the Guild has “no objection” to the issuance of a specific O-1, will help the petition filed with USCIS. But a letter objecting to the petition will not necessarily result in a denial from USCIS since the consultation is advisory.
What if there is no union in my field?
If no union or labor organization covers the beneficiary’s field, the petition may instead include a “peer letter,” written by a US based company or person with expertise in the beneficiary’s area of expertise and attesting to the fact that no union exists for the position. For example, if the beneficiary of the O-1 is a dog stylist and since there is (at this time anyway) no labor union for dog stylists, the O-1 petition should include a letter from a peer group organization or expert in the field, say from an official at the Westminster Kennel Club Dog Show, attesting that no union exists for dog stylists in the US and attesting to the O-1 beneficiary’s talents as a dog stylist.
What are some of these industry-specific unions?
There are quite a few unions in the United States, so it is important to check if a union exists for a specific position before submitting a petition to the USCIS. Furthermore, many of these unions cover unexpected positions (or do not cover a position that one might expect it to), so it’s best to reach out to the union to see whether the beneficiary’s position is covered. The American Federation of Musicians (AFM), for example, only issues consultation letters for artists and groups in which instrumentalists make up least 50% of the personnel.
Some of the most common unions we encounter when preparing O visas for artists and entertainers include the International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators (IATSE) for photographers, camera operators, fashion stylists, makeup artists, hairstylists, and others; Producers Guild of America (PGA) for producers in film, television, and new media; Directors Guild of America (DGA) for film, documentary, and commercial directors; Screen Actors Guild /American Federation of Television and Radio Artists (SAG-AFRTRA) for actors and other professionals in film and television; Actors’ Equity Association for professionals and actors for stage or theatre; the American Federation of Musicians (AFM) for musicians; and the Alliance of Motion Picture & Television Producers (AMPTP), a management organization for film and television, among others.
Certain established peer group organizations have agreed to provide consultations in fields where a specific labor organization doesn’t exist. They include the American Institute of Architects (AIA) for architects; American Culinary Federation (ACF) for chefs and cooks; American Institute of Graphic Arts (AIGA) for graphic designers and art directors; the Art Directors Club (ADC) for professionals in the fields of visual communications; Association of Professional Landscape Designers for professionals in landscape design; Visual Effects Society for visual effects artists; and many more. Petitioners may choose to consult these organizations if the beneficiary is a member of these industries.
USCIS provides a detailed list of existing unions and peer groups who have agreed to provide consultations. The general rule is that if a union exists that has oversight over the field of expertise, they must be consulted. If only a peer group exists, the petitioner may choose which peer group they wish to consult.
Petitioners should check with each union for specific submission requirements, fees, and timelines. Typically, unions require a full copy of the petition to be submitted to USCIS, as well as a fee ranging from $250 to $685 or more. Depending on the union, they may take between three and ten business days to respond to a request for an advisory opinion. Some unions are able to expedite for a fee.
Why do I have to pay if I’m not a member of the union, and don’t receive any membership benefits from it?
This is a question we often hear from our clients. Unfortunately, the consultation letter is a requirement of US immigration law for O petitions, and it therefore has to be submitted as part of the petition filed on the foreign national’s behalf. The union providing the consultation does not require the foreign national to be a member; it is merely commenting on the strength of the O application based on its expertise in the field. If there is a union, and no exception applies, the advisory opinion letter must be submitted.
What if the union doesn’t send me a timely consult and the case needs to be filed?
In rare situations requiring expeditious handling, a petition can be submitted without the advisory opinion letter. In these cases, USCIS can contact the union itself to request the advisory opinion. Following USCIS’s request, the union has twenty-four hours to respond–if it fails to do so, USCIS must render a decision on the petition without the advisory opinion.
Note that expeditious handling is different from premium processing (which guarantees a response from USCIS in fifteen days for a $1,225 fee). It is only granted in specific cases where the petitioner has demonstrated a significant need for the case to be processed even quicker than the premium processing timeline—e.g., a film production that would stand to lose millions of dollars if the beneficiary was unable to arrive in the US by a certain date.
Are there exceptions to the union consultation requirement?
If the petitioner can demonstrate that an appropriate peer group, including a labor organization, does not exist, then the decision will be based on the rest of the materials provided in support of the O application.
A consultation may be waived for foreign nationals with extraordinary ability in the field of arts if the petition filed on their behalf is for similar services within two years of the date of a previous consultation. Similar services typically means working with the same employer on the same or similar projects. Petitioners should submit a waiver request and a copy of the previous consultation with the petition.
Union consultations are just one part of the overall O visa process. While it is by no means the most complex or difficult part, many foreign nationals and sponsors are understandably vexed if their case is delayed by the consultation or if they have to pay extra fees for the consultation—especially when they don’t belong to the union. But while it can be inconvenient, with proper planning and preparation the union letter is a big boost to the strength of the application.