The fashion and design industries employ individuals in various fields of specialization, both in "back office" design and production and "front office" presentation and merchandising, marketing/advertising and sales. Following is an overview of common nonimmigrant and immigrant visa categories allowing employers in these industries to hire and retain foreign talent:
For Design/Production Staff & Marketing/Advertising/Merchandising Staff – Temporary Work Visas:
- For foreign students: F-1 curricular practical training (CPT; on-the-job training that is part of the curriculum; F-1 pre- or post-adjudication optional practical training (OPT; for up to 12 months – very useful for design, and marketing/advertising students)
- For foreign trainees and interns: J-1 intern up to 12 months (for those currently pursuing post-secondary education outside the U.S. or who graduated no more than 12 months ago) OR J-1 trainee up to 18 months (for those with a foreign degree + 1 year of work experience or 5 years of work experience abroad) – run through U.S. Department of State; H-3 Trainee for up to 24 months (for those seeking training that is not available in the home country, and which will benefit the individual's career abroad) – run through U.S. Citizenship & Immigration Services.
- For degreed professionals (at least U.S. or equivalent foreign bachelor's degree in a related field): TN U.S.-Mexico-Canada Free Trade Agreement professionals in increments of up to 3 years (no max) for enumerated occupations such as Architect or Landscape Architect, Graphic Designer, Industrial Designer and Interior Designer; H-1B1 Chile or Singapore or E-3 Australia professionals in up to 2 years increments (no max); H-1B specialty occupation (most common, might be subject to annual lottery) for up to 6 years max in up to 3-year increments (with exceptions to max based on pending green card process).
- For degreed or non-degreed workers: L-1A intracompany transferee (manager/executive) for up to 7 years; L-1B intracompany transferee (specialized knowledge) for up to 5 years – however, L-1B individuals applying abroad based on the employer's blanket L petition must be degreed professionals (very common for transferring employees of global fashion enterprises of any size, in design and non-design roles, to apply knowledge of the brands, products and/or processes in the United States).
- For nationally or internationally renowned professionals: O-1 person of extraordinary ability for initially up to 3 years and then in 1-year increments, with the ability evidenced by awards, publications and published material about the individual, and similar evidence such as published design work (very common in the design field).
- Via a commercial treaty between the United States and the country of citizenship of the investor and/or employee – the U.S. business must share that nationality: E-1 treaty trader or E-2 treaty investor, either as the investor or as a managerial or specialist employee (similar to L-1 but no experience with foreign affiliate per se required; document-wise complicated and therefore likely underused; no max, admission in up to 2-year increments with visa stamp permitting travel usually valid for 5 years).
For Fashion Models – Temporary Work Visas:
- H-1B for fashion models of distinguished merit and ability = prominent in the field and coming to work in a position that requires prominence.
- O-1 person of extraordinary ability (this can also be used for support staff such as hair stylists and make-up artists).
Permanent (Green Card) Work Visa Categories for All of the Above, as Feasible:
- For multi-national managers/executives: EB-1-3 (similar to L-1A; no test of the U.S. labor market required).
- For nationally or internationally renowned professionals: EB-1-1 person of extraordinary ability (self-petition possible) or EB-1-2 outstanding researcher/professor in the design or fashion field (both similar to O-1 but higher standard; no test of the U.S. labor market required); EB-2 advanced degree holder or person of exceptional ability + national interest waiver (where the design or fashion work would have substantial merit and national importance – likely challenging for these industries, but not really relevant given the EB-1-1 category; no test of the U.S. labor market required; self-petition possible).
- For those not qualifying under the above: EB-2 advanced degree holder or person of exceptional ability or EB-3 professional or skilled worker PERM application for labor certification = test of the U.S. labor market with U.S. Department of Labor prior to filing petition with U.S. Citizenship & Immigration Services.
Immigration counsel can help fashion and design employers and individuals determine what options are feasible, and advise on expected timing and cost.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.