Justin Bieber may have redeemed himself in the past year or so with his critically acclaimed, chart-topping album Purpose and newly introspective attitude. But not that long ago, at the crest of his unreformed behavior — the egging, the DUI, the racial epithets — there was a brief squall to toss the performer out of the U.S. “Revoke Justin Bieber’s Visa,” read one New York Times opinion column. Time, meanwhile, ran the sober headline: “Why We Can’t Just Deport Bieber.”
Bieber, it was noted, was and still is a guest of the U.S. on a O-1B temporary work visa, designated for “individuals with extraordinary ability or achievement.” O-1B is an obscure and exclusive program turbocharged in efficiency and efficacy compared to other far less glittery U.S. Department of Homeland Security visas due to its typically big-ticket cost. Consider it the VIP fast pass of immigration.
And the use of this little-known program is growing: THR has learned it has expanded at a rate of 50 percent in the entertainment industry during the past four years, with more than 3,000 people applying for quick visas through O-1B in 2015 alone.
As the nation’s polarized political conversation has zeroed in on immigration during this volatile election cycle, fiercely debating the merits and necessity of foreign labor in the domestic marketplace everywhere from the San Joaquin Valley’s lettuce fields to Silicon Valley’s coding cubicles, Hollywood’s attitude toward its top talent echelons is a full-fledged endorsement of an express lane for talent it deems important. As leading presidential candidate Donald Trump is advocating for a wall along the U.S.-Mexican border, there quietly sits an expensive, expedited program to allow well-funded Hollywood talent to cut to the front of the line. While some foreign applicants seeking political asylum must wait years for a visa (the U.S. Citizenship and Immigration’s Los Angeles office now is scheduling interviews with people who filed in August 2011), most entertainment folk with O-1B requests get their applications resolved in less than two weeks.
“That’s a major, major problem,” says Jennifer Quigley, a strategist with Human Rights First, a Washington-based advocacy group for international refugees fleeing political and religious violence to America. “It should not be the most public and wealthy part of our business community that gets this sort of platinum service versus those who have nothing and are fleeing persecution and in some cases have to wait years. It makes it look like we are catering to the rich and short-changing the poor.”
Who are the beneficiaries? The question should be which non-citizen A-lister working in the U.S. today isn’t one. While their representatives didn’t respond to requests for comment, experts say whether it’s the Brits (Adele, Benedict Cumberbatch) or the Swedes (Avicii, Alesso) or the Australians (Cate Blanchett, Hugh Jackman), they’ve all likely quietly attained the black card of provisional green cards issued by the DHS’ Citizenship and Immigration Services unit.
Stars don’t get them without the help of a cloistered clique of O-1B fixers. Many of these legal practitioners (there are fewer than 10 at the top end in Hollywood) opened up to THR about their handiwork for this inquiry.
The program, along with its sister O-1A (mainly focused on those involved in the sciences and education at a high level — think visiting Nobel Laureate research professors), came about as a result of 1990’s sweeping reformist federal Immigration Act. Concerns even then over the umbrella H-1B temporary visa program for white-collar workers — even more controversial today for its connection with wage depression and outsourcing — prompted the entire O category to be introduced as a niche spinoff.
When the U.S. government created the O-1B grouping — restricted to applicants in the television, motion picture or theater industry and the arts — the DHS put itself in the rather tricky position of adjudicating extraordinary artistic ability and achievement as a matter of career livelihood. It’s chosen to go about it in part by attempting to tally concrete-yet-debatable measures of renown (the caliber of awards won, the notoriety of articles written about you — “good press, bad press, we’ll use it,” says attorney Sherman Kaplan, whose clients include Paramount and NBC). Another tact is acceptance of college-style recommendation letters under a hazy “preponderance of the evidence” standard. “You get Dustin Hoffman writing a letter saying this actor is a great actor because of his presence — a lot of people listen to that,” says attorney Richard Tashjian, who handles Sony and CAA.
Admittance always has depended upon consultation with Hollywood’s unions, guilds and trade associations, most importantly the Alliance of Motion Picture and Television Producers, whose consultative letters serve as the bedrock of every industry application, which comprise the overwhelming majority of the O-1B pool. “In the past four years, we processed from approximately 2,000 to just over 3,000 advisory opinion requests per year,” says spokesman Jarryd Gonzales.
Yet increasingly, the program’s initial intent has crept further afield. These days, many successful applicants are voice actors and assorted below-the-line players — raising new questions about the definition of extraordinary talent. (In fact, a January draft policy memorandum obtained from the DHS articulates a need for a “more flexible interpretation” in how the criteria for O-1B applications are assessed.) And in the past, productions would solely initiate requests for O-1B visas on behalf of their selected foreign talent to remain in the U.S. strictly for as long as the project lasted.
Recently, there’s been a notable shift toward what are known as “agency visas,” in which agents and managers seek them for up to three years in the hope of developing a foreign client’s career — and without necessarily having already firmed up continuous work for the period. “We’ve definitely seen an increase in that [agency] visa filing in the past three years,” says Frida Glucoft of Mitchell Silberberg & Knupp, whose firm handles about 1,000 O-1B applications annually. “With actors doing so many short-term projects, it’s just what was needed.”
Experts observe that the industry’s typical murk of gapped work history, even for successful talent, has allowed for the concurrent rise in bad-faith applications as the program has gained in popularity and become a locus for abuse. “I’m surprised at some of the things that I see positively adjudicated,” says attorney Dora Komura, who has done work for Universal Pictures and DreamWorks. “You’re supposed to have a job, and I see people getting these O-1s without having one.”
USCIS claims it has a handle on the issue. “When we find fraud, we don’t bring it up to the applicant, we bring it up to law enforcement,” says James McCament, deputy associate director of Service Center Operations. “The applicant just experiences it as a delay.”
And, note these same experts, the government now seemingly has become more sophisticated and even persnickety about granting extensions to talent who haven’t proved themselves economically viable during their first go-round. “The agency wants to know what happened to the projects that these people have worked on and, most importantly, how they performed,” says attorney Lorraine D’Alessio, who processed more than 500 O-1Bs in 2015.
Unlike other proceedings of U.S. immigration, which are experienced as a Kafka-esque bureaucratic struggle, most of Hollywood’s top-level O-1B visa applications are resolved within two weeks. This is because nearly all spring for “Premium Processing,” a $1,225 fee that allows for not just speedy, 15-day-or-less service but also lets applicants contact their designated representative via a special phone number and e-mail address to cut out the red tape at the agency’s regional service center in Laguna Niguel, Calif. (Music industry cases, which frequently emanate out of Manhattan, most often are routed through a related center in Vermont.)
Premium processing is favored because it’s a rounding error in a studio’s production budget, and compulsory last-minute decision-making about staffing up a film or TV series — not just casting but crew, too — invariably leads to missions-barely-possible before shooting begins. When all else fails, a favored move is leaning on elected officials by reminding them of the potential economic loss in their district that will be suffered by a, say, $100 million production if it’s delayed even just one day.
“They go to the mayor, they go to the senator, they go to the governor; they call their congressman,” says attorney Alan Klein, whose clients include A&E, ABC and Warner Bros. TV. “It’s all due to speed and need. You’re not going to get a decision approved on a nonmeritorious application. But you’ve got to remember, these politicians want to make their constituents happy.”
That the rich, famous and connected can pay for first-class service from USCIS while its most disadvantaged applicants (like O-1s generally, asylum cases are a relatively small statistical portion of the overall workload) are left to angle desperately for any attention for years should be unsurprising. Critics say it’s the end result of a federal agency that’s been optimized over the years to function essentially as a private company, one whose bottom-line-minded mission — naturalizing more than 700,000 people each year — has been determined by its unique federal fiscal structure. As of 2015, according to a Senate Judiciary subcommittee report, more than 95 percent of its budget was fee-based. (The remainder comes from congressional appropriations. Refugee applications are fee-waived.)
There are two primary drivers fueling O-1B’s growth. The first is the various manifestations of Hollywood’s globalization. Foreign production often still requires some amount of domestic postproduction. Streaming services’ original series play best by featuring an ensemble of talent with worldwide Q Scores. (“It’s bringing people in who aren’t stars here but are huge in their home country: ‘He’s the Tom Cruise of Korea!’ ” says Kaplan.) The traditionally trained English thespian bench — and to a smaller degree, commonwealth cousins in Australia — apparently is inexhaustible, snagging parts from all of those Americans. (Upward of half of Hollywood’s petitions come from Britain, according to O-1B legal specialists.)
The other factor is a newfound understanding of the program. Hollywood doesn’t need to put out advertisements and otherwise first prove there are no skilled U.S. workers readily available to do the same work in order to obtain an O-1B for a favored foreigner. That’s unlike what happens with green cards or the lightning-rod H-2B visa program (which draws on low-wage labor for such tasks as dishwashing at hospitality firms like Ritz-Carlton and Hyatt). “There used to be a misconception,” says another high-volume O-1B industry fixer, attorney Jeff Ehrenpreis. “Now people have become more knowledgeable about the process.”
Adds Klein of the visa, “It’s gold.”
This story first appeared in the May 13 issue of The Hollywood Reporter magazine. To receive the magazine, click here to subscribe.