\ afm \ Adjudicator's Field Manual - Redacted Public Version \ Chapter 33 Performing Artists, Entertainers, Athletes and Others of Extraordinary Ability (O & P Classifications). \ 33.2 Terminology.
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There are several key definitions contained in the statute or regulations which are peculiar to the O and P nonimmigrant classes. A complete listing can be found at
8 CFR 214.2(o)(3)(ii)
8 CFR 214.2(p)(3)
. The following terms warrant additional discussion because they are particularly important and at times confusing:
Extraordinary Ability or Achievement
. “Extraordinary ability”, as applied to the O-1 classification, is defined in section 101(a)(46) of the Act and further explained in
8 CFR 214.2(o)(3)(ii)
. The term refers to
“Sustained national or international acclaim” in their chosen field, including the sciences, arts (performing, visual, culinary, etc.), education, athletics, or business; or
“Extraordinary achievement” in reference to persons in the motion picture and television industry (including both performers and others).
Neither of these terms precisely equates to the term “distinguished merit and ability” found in the former H-1 category and cited in numerous precedent decisions published prior to the 1990 amendments. Accordingly, those decisions should not be cited in decisions or used as references for O-1 petition adjudication. A more detailed technical discussion of these terms is located in
. One or more persons who are essential to the performance of an O-1
performer or athlete
may be classified as O-2 accompanying aliens. The O-2 alien must be coming
to assist in the O-1's performance. The O-2 must be an integral part of the actual performance or events and possess critical skills and experience with the O-1 that are not of a general nature and which cannot be performed by others, i. e. which could not be performed by U. S. workers. If the O-2 alien is accompanying an O-1 alien in the television or motion picture industry, he/she must have skills and experience with the O-1 which are not of a general nature and skills which are critical, due to a pre-e
xisting or long-standing working relationship with the O-1. If he/she is accompanying the O-1 for a specific production only, it must be because significant production (pre and post) will take place both inside and outside the U.S. and the continuing participation of this O-2 is essential to the successful completion of the production. The O-2 classification may
be granted for aliens to support other than O-1 performers and athletes. A businessman or scientist, for example, may not have O-2 accompanying aliens. See
8 CFR 214.2(o)(4)
. The O-2s may not work separate or apart from the O-1 they support and may change employers only in conjunction with a change of employers by the principal O-1. A separate petition is required for such support personnel.
A P-1, P-2 or P-3 may also have accompanying essential support personnel. A separate petition is required for such support personnel. See
8 CFR 214.2(p)(4)(iv)
. As used in this chapter, a peer group includes the group of practitioners of an occupation, including a collective bargaining representative, if any. This term may be used to describe an individual or several individuals engaged in the occupation; it may also be an organized group which is recognized as a labor organization, a professional or management organization. A peer group which is a labor organization is generally required for a consultation, although in some fields, there may not be an organized,
identifiable peer group. See
. The term "group" is defined as two or more persons. This "group" relates only to
P-1 aliens. It does not include individuals who assist in the presentation who are not on the stage (e.g., lighting or sound technicians). These support aliens would need to be petitioned for as essential support P-1s and a separate petition must be filed for them.
If a solo artist or entertainer traditionally performs on stage with the same group of aliens, e. g., back-up singers or musicians, the act may be classified as group. This group would then need to meet the “75% rule”, and if it does not meet that rule, the artist or entertainer would need to qualify as an O-1 (rather than P-1) and the back-up band as O-2s. The “75% rule” means that 75% of the members of the group must have been performing services for such group (and under the same name as shown on the pet
ition) for a minimum of one year or more. See
8 CFR 214.2(p)(4)(i)(B)