How Artists With Extraordinary Ability Can Self-Petition for a U.S. Green Card (With No Job Offer)

Let's say you are a successful artist, and you believe a great professional career might await you in the United States. However, you do not have a job offer there, which is the usual requirement for an employment-based visa or green card..

Don't give up just yet: You might, depending on your level of achievement and recognition, have other options to seek U.S. permanent residence (a green card). Specifically, you might be able to "self-petition" for a "First Preference" immigrant visa ("EB-1") in the "Extraordinary Ability" category based on your talent and recognition as an artist. In this article, we'll look at:

• the requirements for the EB-1 category as they pertain to artists, and
• whether and how this category might work for you.

This article provides a general overview. It is important to remember that many personal factors can affect visa eligibility.

Background on EB-1 Visa

The U.S. created the EB-1 immigrant visa in order to reward talent and ability. Although many of the people who use this visa category are in the fields of science, technology, engineering, and mathematics (STEM), the EB-1 "Extraordinary Ability" category is specifically available for professionals in the arts. Whether your skills lie in fine art, applied art, or the performing arts, this category might be worth looking into if you're interested in living and working in the United States.

The government regulation that defines the First Preference EB-1 visa classification can be found at 8 C.F.R. § 204.5(h).

Basic Eligibility Requirements for First Preference EB-1 Artists of Extraordinary Ability

To qualify for a visa under the extraordinary ability category as an artist, you must be one of the small percentage of people who have risen to the very top of your field, meaning:

• you've received sustained recognition at the international or national level, and
• others in your field recognize you for your artistic achievements.

When it comes time to apply, you'll need to prove your professional standing: either through one major, international award or a combination of other significant achievements (summarized below). Examples of a major international award might be a Grammy for music or an Academy Award for cinematic achievement.

You'll notice that some of the EB-1 criteria appear tailored to researchers and academics. With a bit of skillful argument, however, you might be able to explain how a particular artistic achievement of yours fulfills the requirement in question.

What Combination of Achievements Might Show Extraordinary Ability in the Arts

If you have not received a major international award, your application for an EB-1 Extraordinary Ability visa will need to demonstrate you have received recognition in your field by providing at three of the following categories of evidence:

• awards for excellence (national or international)
• membership in one or more association(s) in your field that requires outstanding achievements of their members, as judged by experts
• publication about you in trade publications or major media (such as a biographical piece about you and your career)
• service as a judge of others in your field or a related field (such as by serving on a review panel)
• original contributions of major significance (such as novel or groundbreaking works that have been recognized by experts in your field)
• articles you authored in professional publications (such as trade journals) or other major media
• display of your work at exhibits or showcases
• leading or critical roles in distinguished organizations
• high salary or pay for your work relative to others, and
• commercial success in performing arts (for example, box office record, or record sales).

Some of these requirements seem very specific, and you might think some of your accomplishments wouldn't fit into one particular category. However, there is always room for a creative explanation. (That's where a good lawyer comes in.) For example, if an article was written about you by a local news publication, you might think it does not count as a publication in "major media." But the regulations don't define "major media," so it's up to the individual immigration officer who reads your petition to decide if the article counts for that category. The way you present your evidence can mean the difference between fulfilling these requirements and falling short.

Keep in mind that the above items are only the minimum requirements for eligibility for the EB-1 Extraordinary Ability category. Showing that you meet the minimum requirements is merely the first step. You will ultimately need to persuade the U.S. immigration officer reviewing your petition that overall, your achievements place you at the top of your artistic field.

Strategies for Matching EB-1 Criteria That Don't Seem Meant for Artists

Artists often face an additional hurdle: The EB-1 eligibility criteria (for example, authorship of articles) are more easily applied to academic researchers or STEM professionals than to artists, especially if you specialize in an applied art (such as brand design or creating visual campaigns for a new product or service). USCIS provides detailed guidance on the types of evidence that qualify for each category. You might find that some of your achievements have been widely recognized, yet don't seem to fit squarely into any particular category based on the examples USCIS provides. Don't let that discourage you. The guidance is a lot more specific than the language used in the regulations. Ultimately, it's up to you to convince the U.S. government that your evidence counts for a particular category.

Let's say, for example, that your collection of original paintings was published in a well-known anthology for artists who employ a unique style. This doesn't seem to fit exactly in any one particular category. There are two ways to approach this problem.

One option is simply to pick the category you feel aligns most closely with the evidence you have, and describe the evidence in those terms. In our example, let's say the well-known anthology that published your work included a short bio. You could certainly describe this as a publication about you in major media, or as display of your work in an exhibition or showcase. This approach may work best if you have a lot of evidence to submit, either multiple pieces of evidence in the same category, or evidence to fulfill more than the minimum three categories.

The other approach is, essentially, to create your own category. The regulations say that if the standards do not readily apply to your occupation, you can submit "comparable evidence" to establish your eligibility. This will require both explaining why a particular category does not apply to you and why your evidence is comparable. This second approach will work better for you if you are relying on fewer pieces of evidence overall.

Returning to our example, instead of simply submitting evidence of publication in the well-known anthology under the "exhibition" category, you could explain that anthologies are the typical way of showcasing work in your field, not exhibitions. You might even want to compare the same piece of "comparable evidence" to more than one category. For an anthology, you could also show how the creation of paintings printed within a professional anthology serves the same purpose as authoring articles: for example, to share a novel application of a known style or methodology with academic peers in order to help advance a unique theory or style.

Or, you could show how the creation of paintings printed in a professional anthology serves the same purpose as authoring articles: for example, to share a novel application of a known style or methodology with academic peers in order to help advance a unique theory or style. This approach helps make sure you don't omit meaningful professional accomplishments. This approach will work better for you if you are relying on fewer pieces of evidence overall.

If you're unsure which of these approaches would be stronger, you can always combine the two. You would start your "comparable evidence" explanation with something along the lines of: "In the event that the evidence submitted under the ‘exhibitions' category is considered insufficient, it should be considered as comparable evidence."

Showcasing and Explaining Your Achievements in Art to U.S. Immigration Authorities

When it comes time to petition for a U.S. green card (lawful permanent residence) based on your extraordinary ability, you will have to submit some basic government forms as well as supporting documents proving your eligibility. Additionally, a cover letter and summary/support letter can help organize and explain the documents you will be including, and argue their significance or relevance. There are no limitations on how much supporting evidence you can submit, or how long your letter can be. Although submitting a large amount of evidence is not enough on its own to establish you've reached the top of your field, it may add weight to the overall claim that you've received significant recognition. If in doubt, don't leave it out!

Even if an attorney will be helping you, it's worth starting to gather supporting documents now, to show that you are as talented as you claim to be. The following tips might help you organize:

Gather objective evidence of your achievements. Objective evidence means from a credible source, rather than being your word alone. Be ready, for example, with a copy of the signed letter or email that informed you of an award for artistic excellence, and include photos from the ceremony or of the award itself instead of just noting the award in your portfolio or artist's profile. News articles, press releases, even social media posts can demonstrate that you actually achieved what you claim.

Show the significance of your awards. Not all awards are created equally. An award from a recognized group of expert orchestral performers carries more weight than an award from peers at your conservatory. Moreover, the significance of an award might not be obvious to reviewers from its name alone. You'll want to explain what it took to get this award. If possible, include qualifying criteria and cite the number of people who actually receive the award.

Show your continued success. The EB-1 category is intended for artists who "sustain" their acclaim. USCIS guidelines provide the following definition of sustain: "to support or maintain, especially over a long period of time . . . To persist in making (an effort) over a long period of time." Thus, you will need to show more than a few seconds of fame. Highlight all of your achievements over the course of your career, no matter how long ago you achieved them.. This should show your likelihood of future success and your ability to continue making major artistic contributions.

Provide background information on associations and organizations that honored you, or which granted you membership. Aside from a Grammy or Academy Award, many industry-specific honors that you and your professional peers take for granted might be unheard of by otherwise informed people outside your field. Do not hesitate to include objective background information on the history, purpose, and significance of the organizations that granted you an award or allowed you to join as a member. Moreover, think broadly about "membership". You may be able to make a convincing argument for participation in select committees, conferences, or even discussion panels, if the event and your role were prestigious.

Line up expert opinions. If you do not widely commercialize your works, you might not be able to cite sales or other commercial achievements as evidence of ability. However, if experts in your field recognize your achievements, their opinion and letters of recommendation can substitute for such evidence. Ask a wide variety of people to discuss your achievements and to preface their letters with information on their background, education, and credentials. Letters can also be a great way to demonstrate the significance of an award or organization, or the relevance of a piece of evidence to a particular category. Don't be afraid to reach out to colleagues to ask for their help, and provide samples of what you'd like them to write.

Consider including rich and new media. If your field of art relies on new models for promoting, showcasing, and selling content, do not hesitate to cite those. For example, many organizations digitally showcase artists and works of art. If you were featured by a major website for your work or career, include a screen shot of the website showing the URL and date retrieved. Similarly, if you have sold your work online, you might include a screenshot of your online ranking or sales record. Social media can be a resource for objective evidence. If you have significant social media engagement, you may want to submit that as general evidence of your sustained acclaim.

The above are just some possible approaches to proving your eligibility for an EB-1 visa, and only some might be relevant to you. An attorney and professional peers can help you select the most complete and persuasive list of documents.

Overview of Application Process to Become a U.S. Immigrant (Permanent Resident)

This article does not supply a complete guide to the application process, but gives a brief preview. You would start by submitting what's called a "visa petition" to USCIS on Form I-140.

What happens next depends on where you are living. If you are already in the United States legally as a nonimmigrant (such as on an H-1B or O-1 visa), you would adjust your status after USCIS approves your immigrant visa petition and your visa category has become current. To learn more, read Applying for a Green Card.

If you are abroad, you would need to go through consular processing after USCIS has approved your visa petition. See Consular Processing Procedures.

The U.S. government may consider not only your eligibility under the EB-1 visa category, but your current or past immigrant status, as well as your personal background, to decide whether you are admissible to the U.S. at all.

Getting Legal Help

While your knowledge of the basics and your cooperation in compiling and organizing the documents can be helpful, the application process demands a great deal of paperwork preparation and attention to detail. An attorney is in the best position to help you persuade the U.S. government that you are at the very top of your field and to make sure that other factors will not affect your options. The attorney can, for example, assess your evidence to determine your eligibility, determine which evidence belongs in which category, and write a summary/support letter that makes a compelling argument to USCIS. An attorney's assistance can be especially helpful in crafting an argument about comparable evidence.

Be prepared to work closely to help explain your achievements and their significance, especially when those achievements don't seem to neatly fall into the standard categories.