By Mariana R. Ribeiro
Contributed to Fashion Model Magazine
The United States’ economic downturn has tainted the world of glamour – the fashion modeling world. Due to fears of a long deepening recession, advertisers have seen their revenues plummet as retailers throughout the world have slashed their marketing budgets. As a result, many modeling agencies that had been sponsoring hundreds of foreign models for work in the U.S., have had to make difficult decisions regarding terminating already-existing representation agreements with sponsored fashion models and freezing sponsorships of new foreign fashion models. The economic crisis coupled with increased government enforcement actions, underscores the need for modeling agencies, who serve as the foreign model’s employing sponsor, to fully understand their obligations under U.S. Immigration laws both during the hiring and the termination processes.
The 1991 Amendments to the Immigration and Nationality Act (“INA”) added fashion models of “distinguished merit and ability” to the H-1B visa category, in order to accommodate the high volume of prominent foreign fashion models entering the U.S. to undertake assignments arranged for them. As with all foreign nationals seeking entry into and work authorization in the U.S. through the H-1B visa category, the first step in obtaining H-1B status for a fashion model requires certification by the Department of Labor (“DOL”) of a Labor Condition Application (“LCA”). Before the DOL may certify an LCA, the employing modeling agency is required by law to make several attestations, which include but are not limited to, attesting that it will pay the fashion model throughout the period of authorized employment, no less than the greater of the actual wage paid to the agency’s other fashion models in the same area of intended employment with similar experience and qualifications or the prevailing wage level for fashion models in the area of intended employment. Once the LCA is certified by DOL, the LCA must be included with the H-1B petition to the United States Citizenship and Immigration Services (“USCIS”) for adjudication.
Additionally, the employing modeling agency must create and retain, a public access (“PA”) file within one day after the LCA is filed with the DOL, which must be made available for public inspection. The PA file must contain documentation supporting the LCA, including, a copy of the completed LCA, documentation which provides the wage rate to be paid to the foreign fashion model as well as documentation used to establish the prevailing wage. Inspection requests may include those made by a disgruntled former model or the modeling agency’s biggest competitor. If the modeling agency does not have a PA file, the agency may be subject to penalties and even debarment from future sponsorship of foreign models.
An recent investigation by USCIS’ Office of Fraud Detection and National Security, shed light on the blatant abuse by employers of the H-1B program. The study reported that 13% of the H-1B files sampled were fraudulent and another 7% had technical violations of the law. Additionally, as a result of the implementation of the DOL’s new iCert Portal system for submitting LCAs, which became effective July 1, 2009, the electronic filing and certification of the LCA by the DOL is no longer simultaneous. Under the new iCert Portal procedure, DOL is required to make a determination to certify or not to certify the LCA within seven working days of the date it is received by DOL. It has been confirmed that the delay in certification is because a DOL program officer will review every LCA prior to certification, and that the systematic abuse of the former instant certification program resulted in the new less userfriendly system.
An additional area of potential noncompliance concerns the modeling agency’s immigration-related obligations should the agency terminate the representation agreement prior to the foreign fashion model’s authorized stay under H-1B status. Termination obligations are increasingly pertinent today as a result of the current economic climate, as even prominent agencies have had to make the difficult decision to either scale back operations or close down entirely. Additionally, many agencies are terminating those foreign fashion models that are not being cast for major jobs and that ultimately are no longer financially beneficial to the agency.
Many modeling agencies terminate representation agreements with foreign fashion models believing they are alleviating financial burdens. However, if not carried out properly, they may be unknowingly taking actions that violate U.S. immigration laws that could result in adverse financial consequences. Under the law, the employer’s obligation to pay the required wages to the foreign fashion model does not end unless the agency effectuates a bona fide termination. A bona fide termination is effectuated only when the employing agency notifies USCIS of the termination, so that USCIS may revoke the H-1B petition, as well as offers to pay the reasonable costs of the terminated fashion model’s return transportation home. Until a bona fide termination is effectuated by the employing agency, it is potentially liable for back wages through the end date of the foreign fashion model’s authorized stay in H-1B status.
As detailed above, although the H-1B visa is commonly used for the employment of foreign fashion models, its use requires that the employing modeling agency understand and carry out the obligations attested to, both during the hiring and termination phases. Unlike other visa classifications, the H-1B visa is subject to an annual quota of 65,000 visas. During the last several years, there have been severe shortages in the availability of H-1B numbers, causing USCIS to invoke a lottery system at the start of the filing period due to such high demand for H-1B visas. However, as anticipated by many due to the current economic climate, according to USCIS’ most recent update, USCIS has only received approximately 45,100 H-1B petitions since the H-1B application cycle opened on April 1, 2009. Thus, employers who still have a need for new foreign fashion models to commence work on October 1, 2009, should consult with Immigration Counsel in order to file as soon as possible in order to take advantage of the H-1B numbers while they are still available.
The H-1B visa, however, is not the only temporary visa available for foreign fashion models. If the fashion model is of “extraordinary merit and ability” in the field of fashion modeling, which can be demonstrated by sustained national or international acclaim, she/he may be able to model temporarily in the U.S. underthe O-1 visa classification. Unlike the H-1B visa classification, the O-1 visa is not subject to annual quotas and does not require that the employing modeling agency obtain LCA certification from the DOL prior to the filing of the O-1 petition with USCIS.
During the 110th Congress, U.S. Congressman, Anthony Weiner, introduced a bill in the House of Representatives to create an additional 1,000 visa slots for foreign fashion models who are of “distinguished merit and ability.” Representative Weiner’s proposed bill would place foreign fashion models into a new P-4 category, a classification usually associated with entertainers and athletes. Although the bill has not been introduced in the current Congress, Congressman Weiner remains committed to the cause and plans on reintroducing the bill in the Fall. It remains to be seen if Representative Weiner’s bill will become part of President Obama’s Comprehensive Immigration Reform Agenda, however, in the meantime, a fashion model can still be sponsored for H-1B classification, and if the fashion model can evidence that she/he is of “extraordinary merit and ability”, she/he may be able to model temporarily in the U.S. under the O-1 visa classification.
The availability of different sponsorship options for modeling agencies and their accompanying requirements and obligations, emphasize the importance of consulting with Immigration Counsel as early as possible in order to formulate the best immigration strategy, so that the optimal immigration objectives can be achieved in full compliance with U.S. immigration laws.
This article was published in Fashion Model Magazine on October 6, 2009.