Want to work in the US? The secret to securing a successful application

For British stage actors, notions of success in theatre often include acclaim under the bright lights of Broadway. In trading the West End for the Great White Way, established British actors can encounter daunting legal obstacles to secure a US visa. For fledgling actors involved in lower-profile productions, the challenges are even greater.

While US immigration law is notoriously arcane, visa eligibility for professional British actors distils down to three factors many understand: finding fame, fortune, or riding long coat-tails. In the absence of these showbusiness hallmarks, some limited alternatives are available.

Fame (O-1B and P-1B visas)
Devotion to one's craft is commendable, but in the absence of a swooning press and industry honours, it will not merit an O-1B visa as an artist of "extraordinary ability". The criteria for extraordinary ability is a subjective measure of national or international acclaim, based on past and upcoming projects, press, reviews, salary, box office and awards. While actors with major industry accolades (for example, a Tony or Olivier award) can demonstrate eligibility on the sole basis of their award, less lauded actors require alternate evidence. As such, British actors wishing to grace the American stage should amass positive press clippings, references, reviews and industry awards, in anticipation of a future O-1B visa filing.

The old showbusiness cliches of no press being bad press and any publicity being good publicity typically ring true for fledgling and mid-level actors wishing to develop their career in a manner capable of eventually demonstrating extraordinary ability.

In the absence of individual extraordinary ability, forming a successful entertainment group may support a P-1B visa. Established acts of two or more artists may be eligible based on international recognition as outstanding for a sustained and substantial period of time. In practice, this level of achievement is a lower standard than what is required for the O-1B visa. As such, the P-1B visa favours actors who are not yet of an extraordinary ability, but still have a marked degree of accomplishment as a unit. In practice, banding together and finding group success lowers the bar for acquiring a US visa.

Fortune (E-2 visa)
In the absence of national or international recognition, possessing some degree of fortune may support an actor's transatlantic move. Subject to various requirements, British owners and investors in a US business may move to the US to direct and develop the business with an E-2 visa. Actors establishing a US company to produce projects may relocate to the US to manage and even perform acting services on behalf of their US enterprise.

The E-2 visa offers a platform to write, produce, and star in one's own projects. Subject to limitations, one may perform external services on behalf of their US company, including acting. While actors may not take direct US employment beyond their own company, business-to-business contractual relationships may permit for acting appearances in third-party productions on the American stage.

Coat-tails (O-2 visa)
For actors not yet blessed with fame or fortune, riding the coat-tails of a successful collaborator may lead to the American stage. The O-2 visa permits US employment for those supporting an artist of extraordinary ability holding an O-1B visa. With the O-1B visa category available to artists, including producers and directors, classification as essential support may permit an actor to appear in a US production while riding the coat-tails of an extraordinary collaborator.

For example, a theatre producer or director of extraordinary ability may bring actors to the US, with the O-2 visa, to appear in US productions. However, proving that an actor is essential support often requires some demonstration of an existing work relationship with the artist of extraordinary ability, or proof of a specific need for the actor on a project. While acting with an O-2 visa is restricted to supporting the work of an artist of extraordinary ability, it does not require fame or fortune. However, it does require fostering relationships with successful individuals and finding the opportune time to ride their coat-tails to the US.

Alternative options (P-2, P-3, H-2B visas)
In the absence of fame, fortune, or adequate coat-tails, there are some limited visa options. Individual stage actors may work in the US with a P-2 visa as part of the reciprocal exchange programme between Equity UK and its US counterpart. These exchanges are normally limited between West End and Broadway productions. The P-2 visa is a limited vehicle for a US producer to employ a UK actor, and it does not permit actors to work independently in the US. There is also the P-3 visa option for actors engaged in culturally unique performances, entering the US to further the understanding and development of their culturally unique art form. Both the P-2 and P-3 offer narrow opportunities to act in the US.

Under the restrictive H-2B visa category, actors do not need to attain national or international acclaim, but they are subject to US labour controls requiring a demonstration that qualified US actors are unavailable and that proposed wages will not adversely affect US actors. These requirements limit the use of this visa category and often prove unduly restrictive for less-established British actors aspiring to appear in US productions.

So, finding a way to the US can pose as much a challenge as finding success after arrival. The options for securing a work visa are limited and many who aspire to act on the American stage must pay their dues and bide their time before successfully applying for a visa. In the absence of fame, fortune, or the right coat-tails, limited alternatives do exist. In building one's career and attempting to take the leap to the American stage, actors should be mindful of their options and tailor their careers accordingly.

William Diaz, Laura Devine Solicitors

This article was originally published in The Stage.