O-1 visa nonimmigrant immigration petitions typically include a consultation letter from a union or agency that details a positive reference guide to the accomplishments of the beneficiary. Usually, the organization that issues the consultation letter has a national or international presence and serves professionals in the specific industry as the beneficiary, such as AFM for signers/composers and VES for virtual effects professionals. If no union or labor agency is available then a management and advisory opinion can be appropriate instead from organizations such as SAG-AFTRA, PGA, DGA, and AMPTP. Consultation letters and advisory opinions may not be free and each organization is different. If neither an appropriate labor union or management organization exists, the petition can be supported by a peer review.
O-1 visa consultation letter regulations
The requirements for consultation letters in both O-1 and O-2 visa petitions are specifically expressed in federal regulations under 214(c)(3) of the INA. 8 C.F.R. 214.2(o)(5)(i(B) requires that appropriate management organizations submit consultation letters in the style of an advisory opinion of the beneficiary with limited exceptions. The exception is available under 8 C.F.R. 214.2(o)(5)(i)(E) if USCIS chooses to designate a petition with expeditious handling for beneficiaries in the arts, entertainment, or athletics. In this circumstance, USCIS can make a decision to directly contact the management and/or labor entity they believe is appropriate to seek an advisory opinion on the beneficiary from. As of March 2020, neither we nor our colleagues in sports and entertainment immigration have encountered many examples of USCIS seeking their own consultation letters, but this could change at any time with the way the current administration is trending. In the case that USCIS did pursue their own advisory opinion, the organization they requested the letter from only has twenty four hours to respond or proceed with the adjudication without the letter from the chosen labor/management organization.
Furthermore, there are specific procedures for petitions that include advisory opinions from peers or peer groups that cannot be classified as a labor organization. 8 C.F.R. 214.2(o)(5)(i)(F) proscribes for USCIS to accept a petition with an opinion from a peer group and in return send the entire O-1 application to a labor or management organization shortly after receiving the petition. Typically, the labor organization has fifteen days to respond to the requests or the USCIS will have to proceed without the input from the organization. Often it will be someone within collective bargaining personnel who will address the request to assure USCIS that the beneficiary is not interfering with the market for jobs for the industry within the United States.
While consultation letters and advisory opinions are required under the regulations and helpful towards confirming the achievements of the beneficiary, USCIS does not have to approve a petition because of a positive advisory letter. Not only is this only one of the requirements for the petition, there is statutory language to bolster this position under 8 C.F.R. 214.2(o)(5)(i)(D). In addition, on September 14, 2018 USCIS created new rules that permit consultation letters that have negative opinions to be submitted directly to USCIS instead of going to the petitioner or their immigration lawyer first. In practice, many providers of consultation letters will first consult with an immigration attorney they are familiar with before sending the letter if there is an established relationship.
What should be included in O-1 petition consultation letters?
8 C.F.R. 214.2(o)(5)(ii)(A) states that a consultation will be required in this case. If the advisory opinion is not favorable, it must “set forth a specific statement of facts which supports the conclusion …” If it is favorable, “it should describe the alien’s ability and achievements in the field of endeavor, describe the nature of the duties to be performed, and state whether the position requires the services of an alien of extraordinary ability.” A consulting organization may submit a letter of no objection instead if it has no objection to the approval of the petition.
There are several forms of O-1 nonimmigrant visas and each comes with its own unique eligibility standards and also consultation letter requirements. Choosing the correct O-1 classification can have a tremendous impact on the success of the petition because the eligibility standards for the different O-1 visas fit much better with certain industries.
The O-1 classifications categories are as follows:
- O-1B for extraordinary achievement in motion pictures and film
- O-1B for extraordinary achievement in the arts
- O-1A for extraordinary achievement in athletics, sciences, and education
Consultation letters under O-1B extraordinary achievement in the arts and motion pictures
Consultation letters are generally required for O-1B consultations with very few exceptions according to 8 C.F.R. 214.2(o)(5)(iii). The appropriate organization for the consultation letter is preferably a labor union that represents the beneficiary’s peers in the United States, or if no labor organization is available, a letter from a management organization that operates in the industry of the services provided by the beneficiary is appropriate. Ideally, a consultation letter is, of course, favorable to the issuance of the O-1 visa and details why the beneficiary’s achievements earn the beneficiary recognition amongst his peers. The consultation letter should also explain that the position and services outlined in the petition require a foreign skilled professional. If the organization providing the consultation letter does not wish to provide an advisory opinion but still wants to support the petition, they can issue a short statement saying they have no objection to the approval of the visa instead of the advisory opinion.
Consultation letters for O-1A visa petitions
O-1A visa petitions have the highest eligibility standard but are appropriate for a wider variety of endeavors such as athletics, business, sciences, and also the arts. Regulations 8 C.F.R. 214(o)(5)(ii)(A) require that positive consultation letters include information on the nature of what the beneficiary will be doing, details of achievements, and why the position requires a foreign national of extraordinary achievement. If the consultation organization does not feel inclined to issue an advisory opinion, they can respond with a no-objection letter or a negative consultation. A negative consultation letter for an O-1A petition should be specific on why the beneficiary is not worthy of a favorable advisory opinion.
Specific instructions from consultation letter organizations
National Writers Union/UAW Local 1981
Provides peer-review letters for writers of all types, authors and journalists, print and digital. We normally seek O-1 visa applications. Requirements can be found at https://nwu.org/about/o-1-visa-applicants/.
The NewsGuild – CWA
The full instructions and Guild jurisdiction for consultation letters can be found at https://newsguild.org/category/who-we-are/01-visa-request-for-advisory/ and email@example.com is the direct contact for questions.
The Stage Directors and Choreographers Society (SDC)
In order for SDC to provide an advisory letter for a stage director or choreographer, the request will need a draft copy of the I-129 application, all supporting material, and a copy of the employment agreement. The fee structure is based on SDC membership. If the director or choreographer is not a member of SDC, the fee is $500, or $1,000 for expedited service. If they are a member, the letter is gratis, or $250 for expedited service. Advisory letters have a turnaround time of up to two weeks, shortened to three to five days for expedited requests.
United Scenic Artists
United Scenic Artists may only issue visa consultation letters for scenic, costume, lighting, sound, and projection designers for work in live performance (i.e. theatre, opera, and dance). Beneficiaries who fit into this category must provide the name of the employer to obtain a list of required materials for a consultation letter.
Alliance of Motion Picture & Television Producers (AMPTP)
The beneficiaries must be working on the production of motion picture, television, web-based series/program, commercials or music videos to obtain a management advisory opinion from AMPTP.
American Society of Media Photographers (ASMP)
All materials must be ready before sending the request for the labor consultation letter. It is best to assemble all related documents into a PDF or an image file. All form and document submissions must be in English. Brief translations must accompany supplemental visual materials, where applicable. The reply will be sent within five business days after all required documents are received and the processing fee is cleared, if applicable. Submitted forms are retained and filed by ASMP.
American Institute of Graphic Arts (AIGA)
AIGA offers advisory opinion letters in support of O-1 and H-1B petitions to members at the Sustaining level (or higher) with the $250 membership cost paid in full. New members can register by following the joining process online. Along with consultation letter request form, AIGA will also need a resume/CV, and examples of work (this can be a collection of images or a website link). Once they have the materials they can begin processing the request, for a fee of $200. Members typically receive their opinion letters three to five days after the materials are received.
The Association for Research in Vision and Ophthalmology (ARVO)
ARVO will provide a letter of support for an O-1 visa applicant who is a current member of the association. Membership is accepted upon recommendation by the Board of Trustees and upon payment of all applicable dues and assessments for the current year. ARVO provides letters of support within one business day (free of charge).
Association of Independent Commercial Producers (AICP)
AICP provides letters for O-type visas (O-1 and O-2). AICP only provides consultation letters for their member companies, as a member service. So unless the beneficiary is going to be working for one of their member companies, AICP will not submit a letter and the request for letters would have to come from the company. A list of their member companies is on the AICP website.
Association of Performing Arts
APAP offers peer visa consultation letters for members applying for O and P temporary employment visa categories. Currently, the fee for letters is $100 payable by check or credit card. The peer consultation letters are not required, but add additional support to visa petitions. They are not a substitute for required labor consultation letters. https://www.apap365.org/Resources/International-Cultural-Exchange/Visa-Assistance. Consultation letters are only available to active APAP members only.
The Authors Guild
The Authors Guild writes consultation letters for 0-1 visas for writers of extraordinary ability. This is the only visa service they provide, and charge a $250 fee per letter, regardless of whether the application is accepted. The Authors Guild requires physical copies of the application and all exhibits for evaluation.
Fractured Atlas writes letters of consultation/no objection for O and P visa applications. In order to request a visa letter, beneficiaries will first need to become a free Community-level member of the Fractured Atlas website. Members are able to request letters through the visa letter request form. As part of your submission, Fractured Atlas requires the petitioner to upload copies of the artist’s I-129, petitioner’s letter, curriculum vitae, and any letters of support/recommendation that will accompany the petition. If the letter of consultation is for essential support personnel, there are slightly different requirements for those applicants. There is a $200 fee associated with standard processing time, which is three to five business days. A letter can be issued in less than three to five business days, through a request to expedite the letter within one business day for an added $150 “rush” fee.
League of American Orchestras
The League of American Orchestras does indeed provide visa letters that are strictly supplemental to the required letter for musician beneficiaries that need to be obtained from the American Federation of Musicians headquarters in New York. The League of American Orchestras also limits letters to petitions that are orchestral in nature. You can find complete information about the process, requirements, and fee at https://americanorchestras.org/advocacy-government/visa-and-tax-for-foreign-guest-artists/requesting-a-visa-support-letter.html.
The One Club for Creativity
A beneficiary is required to become a member of The One Club. The One Club for Creativity also requires a separate visa application letter purchase.