How social stars can land a U.S. work visa

Column: Immigration lawyer Lorraine P. D'Alessio on what social media stars and their petitioners need to consider when looking to work stateside.

Lorraine D'Alessio headshotBy Lorraine P. D’Alessio

Social media is the new frontier in entertainment. Whether it’s YouTube personalities or Vine stars, there’s a new wave of artists who are finding not just an audience, but a growing revenue stream. Unfortunately, existing institutions like the United States Citizenship and Immigration Service are not as agile as technology and culture, and will take some time to properly figure out how their old immigration standards apply to this new class of artist.

John Albanis, a top producer who has worked on films like Hot Tub Time Machine, says he believes social media stars are going to be an increasingly attractive talent pool in Hollywood and he is actively casting some in his future projects. “Talent is great, but talent with a following is far more appealing to a studio,” he says. “We’re going to continue to see more and more social media stars crossing over to our industry.”

But there’s some confusion about when social media stars need work authorization. Simply put, if their work, such as a video, is compensated and takes place on American soil, they will need a visa. The question of who can act as a petitioner is tougher: there exists new media networks, such as Maker Studios or Machinima, that arrange sponsorships with social media talent although these media networks do not designate them as employees.

However, the language defining an employee and employer relationship is deliberately broad; there need not be a specific, tax form-sanctioned relationship to bear some liability in unlawful work. That employer relationship can be defined as simply as a company deriving benefit from the labour of talent, whether they’re an Instagram model or Vine comedian. It may vary based on who judges the case, but it’s always preferable to err on the side of caution in these coin toss situations. Don’t allow the possibility of liability and punishment, and seek out the proper work visa.

That still leaves the question: how does a new media star get work authorization in the United States? For the most part, it’s a lot like other artists – the O-1 “extraordinary artist” visa. The challenge is applying a new media career to the O-1′s old media standards. Certain things about notoriety remain unchanged. As culture catches up, social media artists are increasingly awarded signifiers of exceptionalism from old media: published interviews, live theater shows, even talk show appearances. Every one of these is important in proving that a social media star is at the top of their field.

The key is to never assume USCIS understands why these things make them an extraordinary artist, and be prepared to provide and explain the signifiers of online success: subscriber counts, sponsorship revenue, view counts, followers, and more. Furthermore, look for and explain equivalencies. A make-up tutorial on YouTube is unlikely to make the New York Times, but if a Buzzfeed write-up is just as notable in that field, explain it.

It may be a new world, but social media stars are still artists: they exercise creativity in a subjective field. They are owed the same considerations as traditional artists – including the opportunity to make the leap into American entertainment.

Lorraine D’Alessio is the managing attorney at D’Alessio Law Group, a boutique immigration law firm with a particular level of expertise in helping clients immigrate to the U.S. to invest and work in the entertainment industry. D’Alessio holds a bachelor’s degree with honors in Political Science from the University of Toronto, a Master’s Degree in Public Administration from Queens University, and a U.S. law degree from Southwestern Law School in Los Angeles. She most recently won the prestigious Century City Bar Association’s “Lawyer of the Year” award.