Immigration and Naturalization

The United States Immigration and Naturalization Service (INS), as it relates to film productions, is concerned with the admission of aliens to work in the entertainment industry. All producers wishing to employ foreign actors or production crews must file a Petition for a Nonimmigrant Worker, Form I 129, (with the Form I 129 Supplement O/P/Q/R for O’s and P’s) with the appropriate Service Center of the INS. The mailing address for the office having jurisdiction over Pennsylvania, Delaware and the Northeast portion of the United States is USINS, Eastern Service Center, 75 Lower Welden Street, St. Albans, VT 05479 001. Forms can be obtained from a local INS office or by calling 800 870 3676. You can get more information from INS’s web site at: http://www.uscis.gov/graphics/index.htm. Petitions may not be filed more than six months before the actual need for the alien’s or group’s services, and can be filled by either a US or foreign employer. The approximate time for action on a well documented petition is thirty days. Notification to the American Consulate abroad and visa issuance may require additional time. Employment may not begin until the petition has been approved and the alien has the corresponding nonimmigrant classification.

New regulations concerning nonimmigrants employed by the motion picture and/or television industry became effective in 1992. Aliens entering the United States to perform work in these fields are classified as H 2B’s, O’s or P’s depending on their level of achievement in the arts. The petitioner must be a US employer or the established US agent for a foreign employer. A brief explanation of the types of visas, and some requirements for filing, follows.

H 2B CLASSIFICATION
Entertainers or production crew members of less than distinguished or extraordinary merit and ability may qualify for H 2B status if it can be clearly established that they possess the necessary experience and qualifications specified in the supporting labor certification. To apply for H 2B classification, the employer must first receive certification from the Department of Labor and file it with the petition to the INS. In support of an H 2B petition, the petitioner may submit either a temporary labor certification, or a letter from the Department of Labor declining to issue labor certification. The Service can still approve the H 2B petition, even without the labor certification, if the petitioner is able to submit countervailing evidence overcoming the basis for the Department of Labor’s refusal to issue the labor certification.

O CLASSIFICATION
The O 1 classification is available to individual aliens of extraordinary achievement or extraordinary ability in the arts, coming to a position that requires that he or she perform services in the area of his or her extraordinary achievement or extraordinary ability in the arts. O 2 classification is provided for aliens accompanying the O 1 alien who are an integral part of the actual performance and/or who have critical skills and experience with the O 1 alien. These skills must not be of a general nature, and must be critical based on a pre existing longstanding working relationship or, because the significant production will take place both inside and outside of the US, must establish that continuity is essential. Written consultation with appropriate peer groups, labor and/or management organizations is mandatory. Petitions should be submitted with letters from the peer or labor groups evaluating the alien’s qualifications and nature of work to be done, or the groups’ ability or achievements, with comments on their international recognition and appropriateness of the proposed employment. If the consultation is from a labor organization, the consultation may be either a detailed commentary, on the beneficiary and job, or simply a letter expressing there is no objection to the hiring of the beneficiary.

P CLASSIFICATION
The P 1 classification is available to members of internationally recognized entertainment groups. To qualify the group must be recognized internationally as outstanding in the discipline for a sustained and substantial period of time. Written consultation with an appropriate labor organization regarding the nature of the work to be done and the alien’s qualifications is mandatory. If the consultation is from a labor organization, the consultation may be either a detailed commentary, on the beneficiary and job, or simply a letter expressing there is no objection to the hiring of the beneficiary. This opinion must set forth a specific statement of facts which support the opinion and must be submitted with the petition.

Spouses and dependent children of aliens classified at H 2B’s, O’s or P’s may receive visas in the same classification if they are otherwise admissible to the United States.

For more information, contact http://travel.state.gov.

United States Department of Labor Certification
A Temporary Labor Certification Application for Aliens (form ETA 750A) must be filed by employers with the Department of Labor Office Specializing in Entertainment (OSE) servicing the area of intended employment. To receive forms only, which must be filed in duplicate, contact the Pennsylvania State Alien Labor Certification Unit which covers the five county Philadelphia area at 215/560 1883. Completed applications should be filed with the Alien Employment Certification Office, New York State Department of Labor, 1 Main Street, 5th Floor, Brooklyn, New York 11201 (718 797 7224).

It will not be necessary for the employers to file an application for every job. The employer may simply file one application for each job description, indicating on the application how many positions will be available in that category.

The procedures for Department of Labor certification are extensive and can be time consuming. Please note that one of the requirements is that the employers advertise the position(s) in the Department of Labor approved trade publications. Information on approved publications and specific instructions on how the ad must be written is available from the Film Office.

When reviewing applications, the Department of Labor will take into consideration, among other things: an assessment of requirements of the role or the act to be performed; the need to keep the unity of a group or company and support personnel; the role of labor unions in the field and their impact on the employment; and the willingness of available United States workers to fulfill the employers itinerary.

If you are planning to film in the Philadelphia area and will need to apply for certification by the Department of Labor you should contact the Film Office. We are willing to write a letter to the New York State OSE supporting your efforts, which may, or may not, be taken into consideration by the Department when reviewing your case.