Do you need a Photographer Visa for the USA?
If you are a photographer wanting to travel to the USA for work purposes, you should first check if you need to apply for a visa.
US immigration applications are facing increased scrutiny both during the visa application and at the border, meaning travelers must be certain that they hold the correct permission to travel to the US.
Attempting to enter the US under the Visa Waiver Program to carry out paid employment, such as professional photography work, could have serious consequences; you could be denied entry at the border and the issue will be recorded, potentially impacting future US immigration applications.
We take a look at the rules that affect photographers travelling to the US and what the main immigration options are. In any event, it is important to take professional advice on your individual circumstances as reason for travel is just one factor when assessing visa options.
Can photographers travel visa-free to the US?
If you are travelling to the USA as an amateur photographer or what’s known as a still photographer, ie to build up a portfolio of photographs, provided you will not receive any income from a US source, you may be eligible for visa-free travel under the Visa Waiver Program (VWP).
The VWP allows citizens of participating countries to travel to the United States for the purposes of tourism, business or for transit through the US to another country, without needing a visa, for a period of up to 90 days.
However, travelers qualifying for VWP will still need to obtain authorization to enter the US using the Electronic System for Travel Authorization (ESTA) prior to boarding a US-bound air or sea carrier. You can do this by completing the ESTA online pre-registration form at least 72 hours before departure.
US visa options for photographers
In the event that you are not eligible for visa-free travel, what are the visa options?
If you are planning to travel to the United States purely for the purpose of taking photographs, you may instead be eligible for a B-1 Business Visitor Visa.
For a B-1 visa you will not need a sponsor to file a petition on your behalf and, as such, the process is far less complicated and protracted. That said, the permissible activities are limited, and you will be prohibited from undertaking any ‘gainful employment’ during your stay.
If you are travelling to the US as a representative of the foreign press, radio, film or other foreign information media, you will need to apply for the I visa.
If you are looking to work in the USA as a professional photographer, either on an employed or freelance basis, you would in most circumstances consider the O-1 visa.
O-1 visa requirements
The O visa is a nonimmigrant work visa for overseas individuals who possess extraordinary ability or have a demonstrated record of extraordinary achievement and are coming to the United States to work in their particular field.
The O-1 visa is divided into two categories: O-1A and O-1B. The O-1A visa is for individuals with an extraordinary ability in the sciences, education, business or athletics. The O-1B visa is for those with an extraordinary ability in the arts, or extraordinary achievement in the motion picture or television industry and have been recognised nationally or internationally for those achievements.
To be eligible for an O-1B visa you must prove the following:
- You have extraordinary ability or achievements in your particular field
- You are coming to the USA to continue work in this field
- You have a U.S. work sponsor who will file a petition with US Citizenship and Immigration Services (USCIS) on your behalf.
Extraordinary ability in the field of arts means distinction. Distinction means a high level of achievement evidenced by a degree of skill and recognition substantially above that ordinarily encountered, ie; to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.
To qualify for an O-1B visa in the motion picture or television industry, you must demonstrate extraordinary achievement evidenced by a degree of skill and recognition significantly above that ordinarily encountered, ie; to the extent that you are recognised as outstanding, notable or leading in that industry.
Although the terms ‘extraordinary ability’ and ‘extraordinary achievement’ can seem like extremely high thresholds, reserved only for the smallest number of applicants, many more people qualify for an O-1B visa than one may think – you need not be a superstar, nor indeed a household name, although you will need detailed documentation and recommendations in support.
Proving extraordinary ability or achievement
In order to establish your eligibility for an O-1B visa, your US sponsor will need to submit various documents in support of your petition, not least in relation to proving your ‘extraordinary ability’ or ‘extraordinary achievement’.
This will need to include evidence that you have received, or been nominated for, significant national or international awards or prizes in your particular field, or evidence of at least three of the following:
- Performed and will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements
- Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications
- Performed and will perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials.
- A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or standing in the field, box office receipts, motion picture or television ratings and other occupational achievements reported in trade journals, major newspapers or other publications
- Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the beneficiary is engaged, with the testimonials clearly indicating the author’s authority, expertise and knowledge of the beneficiary’s achievements
- A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence
- If the above standards do not readily apply to the beneficiary’s occupation in the arts, the petitioner may submit comparable evidence in order to establish eligibility.
You will also need between 7 to 10 letters of recommendation from people in your industry and can speak highly of you by testifying to your extraordinary ability. The letter must explain who the person is giving you the letter of recommendation, how they know you and why they think you have extraordinary ability.
Finally, all this evidence will need to be submitted to a peer group or union in your field of work, for example, the Professional Photographers of America (PPA) or the International Cinematographers Guild (ICG), to provide a written advisory opinion to evaluate your credentials.
O-1B visa application process
As previously indicated, the O-1B visa is a petition-based visa that will require you to have a U.S. work sponsor who will file a petition with USCIS on your behalf. As such, if you are a freelance photographer, you would need to identify an agent or production company who will agree to be your sponsor.
Having identified a U.S. sponsor, they will first need to file Form I-129 with USCIS prior to you submitting your O-1B visa application. Only once a petition has been granted can you submit your application for an O-1B visa.
To make a visa application you will need to complete Form DS-160 and pay the appropriate fee. Form DS-160 is the online application form for a nonimmigrant work visa. You will also need to submit various documents in support and, in most cases, attend an interview with your local U.S. Embassy or Consulate.
When you attend your interview for an O-1B visa, at the very least, you will be required to bring the following documentation:
- A print out of the Form DS-160 confirmation page
- A print out of your appointment confirmation
- Your application fee payment receipt, where you have already paid
- Your passport or other travel document. Your passport must be valid for at least six months beyond your period of stay in the United States
- A 5 x 5 cm (2” by 2”) colour photograph taken within the last 6 months.
You should also take documentary evidence to prove the following:
- The purpose of your trip
- Your ability to cover the costs of the trip
- Your intent to depart the USA after your trip.
Consular officers will consider the information entered on the DS-160 to process your visa application and, together with your response to questions provided during interview, will determine your eligibility for a visa.
If your Photographer Visa USA is approved, you can potentially be granted an initial period of stay of up to three years, with the option of renewing in twelve month increments.
O-1 visa processing times
The waiting and processing times for O-1 visas can vary significantly depending on the country in which you make your application, not to mention the nature of your application and the documentation submitted in support.
You should therefore apply for a Photographer Visa USA well in advance of making any travel plans. In theory, your application could take anything from several weeks to several months to process.
Further delay may be caused where either additional documentation is required or you need to seek a waiver of ineligibility, for example, where you have been convicted of a criminal offence.
Need assistance?
The rules relating to US visas can be complex. Further, the grant of a visa, or even visa-free travel under ESTA, does not necessarily guarantee entry to the United States. Any decision as to whether or not you will be admitted will be in the hands of the border officials on your arrival.
It is therefore always best to take expert legal advice before you travel, rather than risking being refused entry at the border and potentially impacting your ability to fulfil a project to make future US immigration applications.
If you have a question about the O visa, or any other US immigration-related matter, please contact us for advice.
This article does not constitute direct legal advice and is for informational purposes only.
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Chambers & Partners, Who's Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.
