Taking a holiday to the US and making content for your social media sites can get you into trouble – if you are really successful – because your tourist visa doesn’t allow you to perform “influencing” for which you are paid. Making content is considered “unauthorized work” by the USCIS under certain facts – and – since 2019 the USCIS has the authority to inspect your social media posts (and has inspected over 40,000 visitors in FY2023). If you qualify as an “Influencer” which is a subjective decision of the immigration officers, then receiving compensation (anywhere) for posts made in the US (sponsorships, payments in money, receipt of any value) can be unlawful. Do you meet the “Bianca Booth” test to rank as an “Influencer?” If you do, then put your phone down until you get the right visa.
Social Media Influencer Bianca Booth from Australia successfully received an “Influencer artist visa” in O-1B. Her social media presence, one million followers on Instagram, magazine articles noting her swimwear business, the agency agreement of the professional appearance booking company Prelude Management, and multiple peer review support letters all combined to establish that Bianca is an “Influencer” and she needed a visa allowing her to work in the US before posting.
One of the best visas for foreign national Influencers and content creators to Live/Work USA is an O-1B visa.1 Specifically, the O-1B is for individuals with extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry. Influencers should consider only the O-1B visa, and should not be accepting pay inside the US and should not be creating paid content in the US unless the Influencer has the O-1B visa.2
O-1B visa have been historically issued in a variety of “occupations,” including for sommeliers, fragrance experts, chefs, marketing directors, and Influencers and content creators. Since creativity and storytelling are key components in the work of Influencers and content creators, they fit in the O-1B (ARTS) category as an artist or “in the arts” as defined.
In the field of arts the criterion of extraordinary ability or achievement is defined as a high level of recognized accomplishments as evidenced by a degree of skill and peer recognition substantially above that “ordinarily encountered” so much so that the Influencer is described as “prominent”, “renowned”, “leading,” or “well-known” in the particular occupation area. USCIS must determine eligibility based on whether the totality of the evidence submitted demonstrates that the beneficiary meets the relevant standard.
As new forms of media productions, including various types of internet content, emerge, it can be more difficult for USCIS officers to determine which Influencer productions constitute motion picture or television productions versus an online recording on some platform.3 The argument for immigration reform to address this new type of artist is well documented along with methods to persuade the visa examiner to favourably review the application.4
Beware – It is very important to distinguish between O-1B(ARTS) and “MPTV” sub-class (motion pictures and television). Analysis of whether an online content piece(s) is within the motion picture or television industry (as self-described) is not limited to whether the piece will air on a television screen or in a movie theater, as the industry has grown to encompass some online content. While “static web materials and self-produced video blogs and social media content” generally do not fall into the MPTV category, the USCIS considers streaming movies, web series, commercials, and other programs with formats that correspond to more traditional motion picture and television productions to generally fall within the MPTV industry’s purview. The USCIS manual states that “[t]his interpretation of whether a beneficiary is working on a motion picture or television production, and is therefore subject to the O-1B MPTV requirements, generally aligns with that of industry organizations. Accordingly, USCIS may properly consider work on such productions to fall under the O-1B (MPTV) classification.”
The documentation of the distinction between Arts and MPTV activities resulting in the fame that is determinative of “extraordinary ability” finding is immensely important. USCIS interprets the eligibility requirements for O-1B (MPTV) to apply if the beneficiary will perform services for motion picture or television productions while in the United States regardless of other prospective services outside the MPTV industry. If, however, an artist’s work or appearance on an MPTV production is incidental to their non-MPTV work as an artist, the O-1B (MPTV) classification may not be appropriate, and the person may instead seek classification under O-1B (Arts). For example, USCIS does not necessarily consider artists who will be interviewed or will otherwise appear discussing, demonstrating, or promoting their work as an artist in a MPTV production to be working in the MPTV industry. This interpretation reflects USCIS’ longstanding practice, and is consistent with the statute, which includes more stringent consultation requirements for persons “seeking entry for a motion picture or television production,” and describes eligibility for persons in this industry separately from those in the “arts,” notwithstanding the artistic nature of their work.
The proof of “extraordinary ability” will not (by definition) fall squarely within the criteria set out in the rules. Instead, the USCIS manual encourages the Influencer to show “that a criterion is not easily applicable to the *** job or profession.” Although USCIS officers do not consider comparable evidence if the petitioner submits evidence in lieu of a particular criterion. The burden is on the Influencer to explain why the listed criteria are not readily applicable to the beneficiary’s occupation. A petitioner relying on evidence that is comparable to one or more of the criteria listed at 8 CFR 214.2(o)(3)(iii)(B) must still meet at least three separate evidentiary criteria to satisfy the evidence requirements, even if one or more of those criteria are met through evidence that is not specifically described in the regulation but is comparable.
Note – Influencers and content creators seeking an O-1B visa must be sponsored by a US-based company or qualified talent agent. This criterion is an absolute requirement which might frustrate even the otherwise qualified Influencer.
Alternatives – There are other possible visas to consider if the “Bianca Booth” standard is out of reach. Content creators, brand architects, or Influencers who hold a bachelor’s (or equivalent) or higher degree in marketing, online digital media, or a field closely related to their role, and will work in-house for a US brand or company, likely in a marketing or digital content or business development role, might arguably qualify for an H-1B.
For Influencers and content creators who are Australians holding at least a bachelor’s degree with a qualified US job offer and who will perform services in a specialty occupation related to their degree may be eligible for an E-3. Unlike an H-1B, there is no annual visa cap so no waiting for a visa number to be allocated. The relationship of the degree to the job offer is where the visa examiner is going to become mired if the documentation is not robust.
It’s important to note that the B-1 visa is not a digital nomad visa—the US does not have such a visa. Influencers and content creators in the US under a B-1 visa must not do any productive or paid work or undertake paid performances while in the US. If the B-1 visa holder engages in activities or employment prohibited under the B-1 visa they may face serious immigration consequences.
Reference List
- USCIS – Authority to inspect social media of visa applicants and visitors (Referenced in FY2023 inspections)
- USCIS – Bianca Booth O-1B case example (professional visa qualification through social media influence and documentation)
- 8 CFR 214.2(o)(3)(iii)(B) – Evidentiary criteria for O-1B extraordinary ability in the arts
- U.S. Department of State – O-1B (Arts) and O-1B (MPTV) visa distinctions and classification interpretations
- Wong, Sydney. Influencing Immigration: The Need for Immigration Reform in the Age of Social Media Influencers, Loyola of Los Angeles Entertainment Law Review, Vol. 42.1 (2021), pp. 2–42
- USCIS Policy Manual – Interpretation of extraordinary ability and comparable evidence
- U.S. Visa Classifications Overview – EB-1A, H-1B, E-3, and B-1 visa requirements and limitations
Regina Mundi Global Advisors 