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WORKING IN AMERICA by Amy R. Novick (JAN 2012)

‘Extraordinary Ability’ Visas for Chefs: It’s Easier Than You Think

For a downloadable version of WORKING IN AMERICA JAN 2012:: Download FSM wia 0112

[EDITOR NOTE: Welcome Amy Novick to the team of local expert columnists as she takes over our Working In America series of information you need to know about properly bringing on the staff you need to operate your foodservice establishments. Pay attention, read her enlightened commentary on the foreign personnel landscape … and ask questions of persons more knowledgeable than yourself and the editor. I learned a lot from Amy’s first column for Foodservice Monthly … you will too. MB]

With professional specialty “H-1B” work visas no longer available for foreign personnel u Amy Novickntil October 1,  2012, restaurateurs, hoteliers, and others in the hospitality industry must explore other work visa options for their essential staff. The O-1 “extraordinary ability” visa has long been used by restaurants for their executive chefs, sous and pastry chefs, and even sommeliers and mixologists. A little gem in the immigration code, the O-1 visa category is a niche for less than James Beard winning foreign-born chefs to obtain the right to live and work in the United States initially for up to three years, with extensions available indefinitely. Indeed, besides the most-famous culinary artists at legendary restaurants who generally can qualify, foreign chefs with established reputations also can qualify for O-1 status. And, they need not work at large venues, such as hotel restaurants, or be part of a hospitality group in order to do so.

So, what’s required? Under the immigration rules, the standard of proof for culinary artists to be classified as “extraordinary” is not extremely high: the individual must establish that he or she has earned “distinction.” U.S. Citizenship and Immigration Services (USCIS), the U.S. government agency that adjudicates these cases, defines distinction as “a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that the person described as prominent is renowned, leading, or well-known in the field of arts.”

What does this mean? One must prove with proper evidence that the particular chef is “substantially above that ordinarily encountered,” and that the chef is “well-known.” He or she must be recognized as one who is substantially above average, but can be recognized either nationally, here or in her home country, or internationally. Thus, a culinary artist who is sufficiently “well-known” in France, but who is entirely unknown elsewhere, can qualify for O-1 status because she has earned national “distinction” in France. If the evidence establishes that a foreign chef is “leading” or “well-known,” an O-1 work visa may be available. The standard is not as daunting as it may appear, but objective, credible, and extensive evidence must explain how and why the individual earned distinction.

Who is eligible? Immigration law provides considerable flexibility in the definition of the “arts”; it is not limited to fine arts, visual arts, culinary arts, or performing arts and includes “any field of creative activity or endeavor.” In fact, the term is quite expansive. Thus, the field of arts includes not only the principal creators but can also include others engaged in “creative activity.”

How much documentation is needed? The immigration rules provide specific forms of documentary evidence that a foreign national must submit to establish the required level of distinction for O-1 status. This includes proof of having received a significant national or international award or prize, or at least three of six specified forms of documentary evidence:

(1) serving in a leading or critical role at events/productions with distinguished reputations as shown by critical reviews, advertisements, publicity releases, publications, contracts, etc.;

(2) serving in a leading or critical role for establishments with distinguished reputations as shown by articles in newspapers, trade journals, magazines or testimonials;

(3) recognition through critical reviews or other published material by or about the individual in major newspapers, trade journals, magazines, etc.;

(4) record of major commercial or critically acclaimed success;

(5) receipt of significant recognition from organizations, critics, government agencies, or recognized experts;

(6) present or future command of a high salary or other remuneration in relation to others in the field.

Other “comparable evidence” can be offered if the documentary evidence suggested by USCIS regulations does not readily apply. However, no matter how much evidence is offered, in the end, the evidence must demonstrate clearly that the foreign national has earned the required level of national or international recognition.

Care too must be taken to define the individual’s field with an eye towards establishing her or his distinction in that particular field. For example, it may be important to define a chef’s field broadly, e.g., Executive Chef, while on other occasions defining the field more narrowly, e.g., as a French Executive Chef, is more beneficial. In any event, it is the quality rather than the quantity of the evidence that is critical to success, and this can turn on who attests to the foreign chef’s achievement of national or international recognition.

Why an O-1? Besides the fact that there is no limit on the number of O-1 work visas that the government can issue in any given year, the O-1 offers considerable flexibility and can be a convenient first step toward permanent residence, if so desired. Part-time employment is permissible as are multiple employers, but each employer must file separate petitions for the foreign national; an individual cannot sign his or her own petition for O-1 visa status and it must be filed by a U.S. employer. Another benefit of O-1 visa status is that the foreign national can petition for his or her spouse and unmarried minor children, and they will be admitted for the same period of time as the principal applicant.

Acquiring an O-1 visa certainly takes time and effort, but once obtained, it can enable the foreign-born chef to enter the U.S. and to lawfully work and reside here indefinitely.

Amy Novick has been working in the field of immigration law and policy for more than 25 years. As Of Counsel to the Haynes Immigration Law Firm, Ms. Novick’s practice focuses on obtaining work visas for skilled professionals, issues of concern to G-4 international workers, investors, foreign adoptions, naturalization and citizenship, and family-based immigration matters. She represents employers and their employees in a variety of settings including hospitality, high tech, and medicine. Ms. Novick serves on the board of trustees of the American Immigration Council and is a frequent editor of immigration law titles published by the American Immigration Lawyers Association. To learn more or to schedule a personal consultation contact her at 202-293-3123 or anovick@dcimmigrationattorney.com

About the Author

Michael Birchenall is Editor and Publisher of Foodservice Monthly, a regional trade publication covering the foodservice industry of the Mid-Atlantic (DE, DC, MD, VA). Foodservice Monthly has been recognized as the Restaurant Association of Maryland's Allied Industry Member of the Year and by the Restaurant Association Metropolitan Washington as the Joan Hisaoka Associate Member of the Year.

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